P L D 1957 (W (PLP)

QADEERUDDIN, J.

The petitioner had filed another writ petition being Writ Petition No. 280 of 1956 and had prayed in it for the issue of a writ of certiorari quashing the order by which the petitioner was disqualified and for a writ restraining the respondents from holding a general meeting of the Sukkur Municipality on the 23rd of July 1956, or on any other sub sequent date without allowing the petitioners, Zahir Ahmad, Ghulam Muhammad Bhutto, Muhammad Siddiq to participate in it. Ail application for injunction was submitted, and on the 21st of July 1956, Lari, J. and Bachal J. ordered an interim injunction to be issued in terms of the prayer. On the 20th of August 1956 the writ petition was admitted. On the 15th of January 1957 it came up for regular hearing and the counsel of the petitioner sought permission to withdraw it with liberty to file a fresh petition. This permission was granted apparently because the meeting originally fixed to be held on the 23rd of July 1956 had been held and elections had taken place. The present petition has been filed in pursuance of per mission granted by the Court to file a fresh petition. It is alleged by the petitioner that the terms of office of the president and vice-president, namely, Syed Quwat Ali, respondent, No. 1 and Mr. Hamid Hussain Farooqi, respondent No. 2 expired in January 1956, and that new president and vice-president had to be elected within 25 days from the occurrence of the vacancy. These elections did not take place until the petitioner and his three colleagues were declared to be disqualified in July 1956. After these Coun cillors were declared to be disqualified to be Councillors, Syed Quwat Ali Shah, respondent No. 1 proceeded to call a special meeting of the Municipality for the election of the president and the vice-president. On the same day they approached the Deputy Commissioner with a view to invoke his help on the ground that the notice was not in accordance with the terms of subsection 3 of section 35 of the said Act. The Deputy Commissioner heard the petitioner and respon dent No. 1 and ordered in exercise of the power vested in him under section 214 of the said Act prohibiting respondent No. 1 from holding the meeting on the 23rd of July 1956. The meeting was called for the 23rd of July 1956 and no notices were issued to the petitioner and his three colleagues on the ground that they were disqualified to be Councillors. The order of injunction having been issued in the meantime on the 21st of July 1956, the respondents were compelled to allow the petitioner and his three colleagues to attend the meeting of the Municipality if they wanted to hold one. They issued a notice to them on the 22nd of July 1956 informing them that they could attend the meeting on the 23rd of July 1956 at 7-30 a. m. This notice was apparently served on the 22nd of July on the petitioner and his three colleagues. The petitioner has challenged the validity of the meeting and the elections which were held in it, mainly oil the grounds that the meeting was not called in accordance with the terms of section 19-A of Sind Municipal Boroughs Act, 1925, notices were not given in terms of subsection 3 of section 35 of the said Act and the order issued by the Deputy Commissioner was contravened illegally. The petitioner has prayed that the proceedings of the meeting should be quashed and the offices occupied by respondents No. 1 to 14 should be held to be illegally occupied by them, on account of the invalidity of the elections held at the meeting. The stand taken by the respondents is that section 19-A of the said Act has no application, that the petitioner and his colleagues were allowed to attend at the meeting held on the 23rd of July 1956, on account of the order of this Court for which the compliance of the terms of the subsection 3 of section 35 was not required and that the order of the Deputy Commissioner could not be complied with because it was served on respondent No. 1 at about '10 a. m. long after the meeting had concluded and because it was illegal and was as such set aside by the Government of West Pakistan by their order dated the 23rd of August 1956. We do not see how it is possible for the respondents to contend that section 19-A of the said Act was not applicable to the meeting held on the 23rd of July 1956, which was called to fill up the vacancies caused by the expiry of the terms of office of the president and vice-president. Such vacancies are to be filled up under subsection (1) of section 23 of the said Act and the provisions of the section 19-A are applicable, as far may be under subsection (2) of section 23 to the calling of such a meeting and the procedure to be followed at it. The counsel of the respondents has advanced no arguments to substantiate the contention that in spite of the provisions of subsection 2 of section 23, the terms of section 19-A were not applicable to the meeting. We hold that section 19-A was applicable. According to this section the meeting ought to have been called by the Collector and not by the president. The meeting which was held on the 23rd of July 1956 was admittedly called by the president, and not by the Collector, and as such it was in violation of subsection 1 of section 19-A of the said Act. It was admittedly a special meeting, and therefore, according to the provisions of subsection (3) of sec tion 35, three clear days' notice was to be given to the Coun cillors. It is to be noted that the notice required by law should specify the time and place at which such meeting is to be held as well as the business proposed to be transacted thereat. The excuse of the respondents for not giving such a notice to the petitioner and his three colleagues is that these gentlemen were informed of the meeting and were allowed to attend it in compliance with the orders of this Court only, and as such, the provisions of subsection (3) of section 35 were not applicable. They have stated in the counter affidavit that the petitioner and his three other colleagues stood disqualified on account of the previous decision taken by the Municipality. The question of the correctness or otherwise of the disqualification of the petitioner and his three colleagues has not been raised before us. Section 12 of the said Act enumerates the disqualifications of the Councillors and section 28 provides that any Councillor who becomes subject to any disqualification mentioned in section 12 shall be disabled from continuing as a Councillor and his office shall become vacant and in the event of a question arising as to whether a vacancy has so occurred or not. the orders of the Provincial Government in this regard shall be final. It is a question of fact as to whether the petitioner and his three colleagues have become subject to any disqualification specified by section 12 of the said Act or not, and whether on a question having arisen as to whether vacancies had occurred under subsection (1) of section 28, the Provincial Government has passed any clear order or not. All that has been admitted before us is that allegations were made that the petitioner and his three colleagues were disqualified, the Deputy Commissioner intervened and passed certain orders, the petitioner and his colleagues questioned the correctness of the allegation of their disqualifications and that the Provincial Government took the view that the Deputy Commissioner's intervention was not in accordance with law. The Provincial Govern ment is said to have passed certain orders and if we take it for granted for the sake of argument that the petitioner and his colleagues were held by the Provincial Government dis qualified as Councillors, it is to be taken subject to the objection of the petitioner as to its validity and a question arises as to what was the effect under these circumstances of the order of injunction of this Court on account of which these gentlemen were allowed to attend the meeting held on 23rd of July 1956. The order was that the respondents should neither hold a meeting of the Municipality on the 23rd of July 1956 nor on any other subsequent date without allowing the petitioner and his three colleagues to participate in it. This order was issued on the basis of the allegations of the petitioner that he and his three colleagues were not disqualified to be Councillors. If the respondents wanted to question the correctness of these allegations, then they ought to have come to this Court and challenged the truth or the correctness of the allegations made by the petitioner. The question as to whether the petitioner and his three colleagues were disqualified was sub judice at the time when the meeting was held and the respondents could not by themselves conclude that the stand taken by them was correct and that the disqualifications were established. If they had wished to vindicate the correctness of their stand then they ought to have postponed the meeting scheduled by the president to be called on the 23rd instead of holding it and allowing the petitioner and his colleagues to attend it. They did not choose to do so and therefore they cannot now take the stand that their own views that the petitioner and his three colleagues had become subject to disqualifica tions should be accepted as correct for the purposes of observing with regard to the meeting held on the 23rd of July 1956 the provision of subsection (3) of section

35. The order of the Court that the meetings could not be held without allowing the petitioner and his three colleagues to attend them was an interim order in order to maintain the status quo and to avoid the creation of a situation by which the rights of the petitioner and his three colleagues would be prejudiced by the holding of elections in which they could not parti cipate. This order neither amounted to a decision that the petitioner and his colleagues were not disqualified and were thus entitled to participate in the meeting, nor did it entitle the respondents to allow disqualified Councillors to attend the meetings. If the stand of the respondents was that these gentlemen had ceased to be Councillors, then they had the option to postpone the holding of the meeting and not to treat them as Councillors. The option was given with the object of not standing in the way of transacting urgent business if the respondents were prepared to treat the peti tioner and his three colleagues as Councillors. This position was not difficult to appreciate and the Deputy Com missioner did appreciate it when he ordered that the com pliance of the terms of subsection (3) of section 35 was necessary. He passed the order under subsection (1) of section 214 of the said Act obviously on the ground that the holding of the meeting without proper notice to those who were treated to be Councillors was unlawful. He had the jurisdiction to pass such order but it was flouted by res pondent No.

1. On the excuse that the order was served on him at 10 a. m. after the conclusion of the meeting. This excuse is not acceptable because the order was passed after giving a hearing to him and he cannot plead ignorance of it. His additional excuse is that the order was set aside by the Provincial Government under subsection (3) of section 214 of the said Act by a telegram dated the 23rd of August 1956. The mala fide nature of this excuse is clear from the fact that while the president takes shelter of delay in the service of the Deputy Commissioner's order on him, he finds justifica tion for his actions in a telegram which was issued to him by the Provincial Government after a month of it. It cannot be said that it was not in force when it was issued. The suggestion contained in the arguments of the respondents is that the order of the Deputy Commissioner was void ab initio and could be disregarded. This stand however, cannot be correct because if the order was void it need not have been set aside by the Provincial Government as alleged by the respondent. A copy of the telegram has been produced by respondent No. 1 and its contents show that actually the Provincial Government had done nothing more than communicating the opinion of the Law Department. Accord ing to this opinion the omission to give a notice according to the provisions of subsection (3) of section 35 of the said Act was only an irregularity which did not invali date the resolutions passed at the meeting in view of the provisions contained in para. 2 of subsection (1) of section 57 of the Act. These provisions only lay down that no resolution shall be deemed to be invalid on account of any irregularity in the service of notice upon any Councillor. It relates to the process of service and not to the in sufficiency of the notice itself. Subsection (3) of section 35 of the said Act, has made it mandatory that three clear days' notice shall be served upon the Councillors and that it is to specify not only the time and place of the meeting to be held but also the business which is proposed to be transacted in the meeting. The violation of these provisions is not an irregularity in the service of a notice. We think that the opinion of the Law Department of the Provincial Govern ment, as contained in the telegram dated 23rd of August 1956, was erroneous and the order of the Deputy Commis sioner was neither void ab initio nor was it set aside by the Provincial Government. It was a binding order and its con travention by respondent No. 1 was unlawful. The above is the discussion of the main arguments raised before us. Some minor arguments were also raised, such as the incompetency of the meeting to elect the members of the Standing Committee and its Chairman. It is un necessary to discuss this and similar arguments because it appears to us that the meeting was not called validly in as much as the provisions of section 19-A of the said Act were not observed and also because it was called in direct violation of an order passed by the Deputy Commissioner under section 214 of the said Act which order was neither void ab initio nor was it set aside by the Provincial Govern ment under subsection (3) of section 214 of the said Act. We therefore, quash the proceedings of the special meeting of Sukkur Municipality held on the 23rd of July 1956 and wish to make it clear that the resolutions passed and the elections held there at, are null and void. Respondent No. 1 shall pay Rs. 300 as costs to the petitioner. A.H. Petition accepted.