1985L51 (PLP)

SAAD SAOOD JAN, J.-The petitioner is the elected Mayor of the Municipal Corporation, Faisalabad. On 28-11-1984, 59 members of the Municipal Corporation sent a requisition to the Commissioner of Faisalabad Division for convening a special meeting of the Corporation to consider the motion of no-confidence against the petitioner. Accordingly, on the same day, the Commissioner summoned the special meeting for 8- 12-1984 at 10 a.m., to consider the proposed motion. He also nominated Syed Jalil Abbas, Deputy Commissioner, Faisalabad, to preside over the meeting. A few days later, announcement was made with regard to the holding of a referendum in the country on 19-12-1984. Immediately thereafter, the President started touring the country and addressing public meetings. On 5-12-1984, the Commissioner was informed that the President would address a 'public meeting at Faisalabad on 8-12-1984 at 10 a.m. Later, on the same day, the time of the meeting was changed to 2 p.m. It is common ground between the parties that all members of the Corporation were invited to attend the public meeting and the petitioner, in his capacity as Mayor, was requested to read an address of welcome to the President on behalf of the citizens of the Corporation.

2. The sudden decision of the President to visit Faisalabad on the very day for which the special meeting of the Corporation had been convened placed the Commissioner, the District Administration and the members of the Corporation who wished to attend the public meeting in some difficulty. According to the Commissioner, the petitioner himself approached him for the postponement of the special meeting. Before us, the petitioner has denied this assertion of the Commissioner. However, that may be, the Commissioner had different courses open to him. One was to adjourn the meeting to later in the afternoon on the same day and direct the Additional Commissioner instead of the Deputy Commissioner who was expected to be extremely busy on account of the President's visit, to preside over the same. Another was to postpone the special meeting to a future date so that the members of the Corporation who had been invited to attend various public meetings being addressed by the President in the Province, could become free from their said engagements and also from their involvement in the referendum. The latter proposal found favour with the commissioner and on 7-12-1984, he adjourned the special meeting without fixing another date. After the referendum, on 20-12-1984, he made another order and thereby convened the special meeting for 30-12-1984 at 10-30 a.m. On 27-12-1984, the petitioner moved this writ petition challenging the legality of the order of 20-12-1984 arid sought a restraining order to prevant the. Commissioner and the Deputy Commissioner from holding the special meeting on 30-12-1984. This petition was listed during winter vacation before a Division Bench which on 30-12-1984 directed that though the meeting might he held but that its result should not be declared or implemented during the pendency of the writ petition. Admittedly, a special meeting was held on 30-12-1984 and out of 62 members present, 59 cast their votes in favour of the motion. 2-A. In support of this petition, it is contended that after he had once convened the special meeting for 8-12-1984, the Commissioner bad no lawful authority to postpone the same and that the only authority competent in this regard was the Presiding Officer ; further, the Presiding Officer could postpone the meeting only in unavoidable circumstances and that too only after he had obtained the permission of the authority competent to convene the meeting. In support- of this contention reliance has been placed on sub-rule (5) of Rule 3 of the Punjab Local Councils (Vote of No-Confidence Against Chairman or Vice-Chairman) Rules, hereinafter referred to as the Rules. In order to appreciate the argument of the learned counsel, it will be of advantage to reproduce the whole of Rule

3. It reads as follows : "(1) The authority to whom the requisition under rule 2 is made shall, within seven days of the receipt of such requisition, convene a special meeting of the local council to consider the motion of no confidence. (2) A seven days' notice shall be given for a meeting convened under sub-rule (1). (3) (4) The notice of the meeting shall be published by affixing it on a Notice Board of the office of the local council and may also be made known to the members by any of the following means : (a) an advertisement or a Press Note in a newspaper commonly read in the area of the local council; or (b) a Radio announcement ; or ((c) beat of drum ; or (d) such other mode as may be considered appropriate by the Presiding Officer. (5) A meeting convened under sub-rule (1) shall not be postponed except in unavoidable circumstances and with the prior approval of the authority to whom the requisition was made. (6) No quorum is required for a meeting convened under sub-rule (1)." It may be mentioned that sub-rules (5) and (6) are later additions in the Rules and that formerly there was no specific provision for the postponement of special meetings. However, that may be, the language of sub-rule (5) does support the contention of the petitioner that a special meeting is not to be postponed lightly but that this can be done only if unavoidable circumstances, intervene and that in any event. before postponing the A meeting, the Presiding Officer should obtain the approval of the authority to whom the requisition has been made. But we are unable to find substance in the further contention that on 7-12-1984 when the Commissioner directed the postponement of the meeting there were no unavoidable circumstances which would have made the holding of the special meeting -on the schedule day and hour highly inconvenient or difficult. As already mentioned, the President chose to visit Faisalabad on the very day for which the special meeting had been convened. The President was to address a public meeting in connection with the referendum and all the members of the Corporation including the petitioner had been invited thereto. The petitioner was in fact expected to read an address of welcome at the meeting on behalf of the citizens of Faisalabad in his position as Mayor. Even ordinarily, the visit of the Head of State in a District places great strain on the District Administration, but in this particular case the purpose for which the President was coming to Faisalabad must have made the task of the Deputy Commissioner and Commissioner even more onerous ; for they had not only to make arrangements for the meeting but also look after the Presidents security and watch the law and order situation in the District. Apart from that the m.-tubers of the Corporation including the petitioner had their own engagements in connection with the public meeting. In this background, if the Commissioner thought that there were unavoidable circumstances which necessitated postponement of the special meeting, no fault could be found with his decision.

3. Rule 4 of the Rules provides that in the case of a Municipal Corporation the special meeting convened to consider the motion of no confidence is to be presided over by the Commissioner or, if he sonominates, by the Additional Commissioner or the Deputy Commissioner. As already stated, in this case the Commissioner elected not to preside over the special meeting himself but instead nominated the Deputy Commissioner to do so. The second part of the learned counsel's contention is that once the Commissioner had nominated the Deputy Commissioner to preside over the special meeting he lost the power to postpone it, for then it was the Deputy Commissioner alone who could exercise this power or determine if any unavoidable circumstances existed to justify postponement of the meeting. There is little merit in this contention either. Sub-rule (5) of Rule 3 which provides for postponement does not specifically indicate the authority which may exercise this power, although the words "with the prior approval of the authority to whom the requisition was made" as occurring in the sub-rule do suggest that where this power is sought to be exercised by a person nominated by another authority, he should before exercising the power e obtain the approval of the latter authority. However, this does not necessarily imply that the authority convening the meeting cannot postpone it even though it may have become impossible-or extremely inconvenient that the meeting should be held at the time and date already specified in' this regard. Such a construction will add an element of rigidity in the rule and in some situations which can be easily imagined it may well lead to impasse. In this context reference may be made to section 20 of the General Clauses Act, 1966, which states that the power to issue an order includes within it the power to rescind or vary the same. While construing c a similar provision in the Central General Clauses Act, the Supreme Court) in Pakistan v. Himayatullah Khan (P L D 1967 S C 407) observed :- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the .General Clauses Act, locus poentitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of al! authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." It hardly need be added that mere issuance of a notification convening a meeting does not ordinarily confer any right on any one that may be said to have been infringed by its subsequent withdrawal before the meeting is actually held. ]'his being the position, the Commissioner as convening authority was competent to postpone the meeting. Consequently, he could Judge for himself whether circumstances existed to justify such an extraordinary step.

4. In his written statement, the Commissioner has averred that among others the petitioner too had asked him to postpone the meeting. The averment reads as follows : "Moreover, it was the petitioner also who approached respondent No. I and requested to postpone the meeting on the plea that in the absence of such a postponement he would not be able to read the address of welcome which was to be read out by him in the meeting to be attended by the President of Pakistan." The petitioner has filed a rejoinder in which he has denied having approached the Commissioner for postponement of the meeting. We are inclined to accept the version of the Commissioner for he does not stand to gain anything by making a false assertion in this regard. There is no allegation that the Commissioner had any personal motive to hurt the petitioner or to side with the requisitionists.

5. The next contention on behalf of the petitioner is that the meeting could not be postponed before the scheduled time because it was only at that point of time that it could be judged whether there were any unavoidable circumstances necessitating the postponment. There is also no merit in this contention. The cause or causes for which a meeting may have to be postponed can be of diverse nature and for that reason cannot be particularised or catalogued. There may be riots leading to curfew or E there may be floods suspending communication which may make the holding of a special meeting impossible. In the event the impracticability of holding a meeting at the already-notified day or time becomes known before the scheduled time or day (as was the case here) there is no requirement) of any rule that the competent authority must wait till the actual time of F meeting before it can direct postponement. The language of sub-rule (5) does not support any such construction. We are, therefore, unable to agree with the learned counsel for the petitioner that the meeting could not be postponed before 8-12-1984, that is, the day already specified for the purpose.

6. It is then contended on behalf of the petitioner that the postponement was mala fide inasmuch as it was made with ulterior motives and that its real object was to make it convenient for the sponsors of the motion to win over more members to their side and thus attain the 2/3rd majority which was necessary for carrying out the motion. We have already referred to the circumstances in which the Commissioner postponed the meeting. As regards the allegation that the postponement was made in order to help the movers of the motion to win over more members to their side. we may mention that the requisition presented before the Commissioner was signed by 59 members. This was more than the number required to carry through the motion. As the number of requisitionists was by itself sufficient for the success of the motion, any postponement of the meeting was to the advantage of the petitioner for this would have provided him with more time to bring some of the requisitionists to his own side. In fact, we may mention here that in the meeting which was ultimately held on 10-12-1984, three of the requisitionists did not support the motion. We are, therefore, unable to find substances in the allegation that the postponement was motivated by any ulterior object. 1n any case, the petitioner has not explained why the Commissioner should be interested in depriving him of his elected office.

7. While postponing the meeting, the Commissioner had not in his order indicated the next date for the meeting. This omission on his part was sought to be used by the petitioner in support of his plea of mala fide. Thus, it was alleged on his behalf that it was entirely unnecessary for the Commissioner to postpone the meeting sine die and that be could have convened the meeting for the day following the visit of the President, that is, 9-12-1984. In this context, the learned Advocate-General explained that the members of the Municipal Corporations were being invited to various meetings held in connection with the referendum. The largest of these was held at Lahore on 12-12-1984. The invitation issued to the petitioner to attend these meetings which were being addressed by the President would have given an excuse to him and his supporters to stay away from the special meeting, further, the arrangements required to be made in connection with the referendum kept the Divisional and the District Administration extremely busy. Thus, before the referendum was held, the Commissioner was not in a position to appoint a day for the special meeting which could be conveniently attended by all the members of the Municipal Corporation. Thus, the Commissioner waited till the referendum was over and fixed a date for the meeting on the day following the referendum, that is, 20-12-1984. The explanation of the learned Advocate-General cannot be thrown out as implausible. On the other hand the contention of the petitioner that the sine die postponement of the meeting was mala fide, seems to be based upon mere conjectures. We would accordingly hold that the petitioner has not been able to establish his plea of mala fide.

8. On behalf of the petitioner our attention was drawn to a draft notification prepared by the Chief Corporation Officer of the Municipal Corporation on 4-12-1984 changing the time of the special meeting on 8-12-1984 from 10 a.m. to 2-30 p.m. On going through the papers, we find that the draft notification was prepared on the basis of a note written by the Corporation Clerk and that the Corporation Clerk had rested his note on some information received by him from a Superintendent in the office of Director, Local Government. It does not appear that the Commissioner had given any direction in this regard. We are, therefore, not prepared to place any reliance upon the draft of a notification which, in any event, was never issued.

9. During the course of arguments, the learned counsel for the petitioner also attacked the legality of the proceedings held on 30-12-1984 during the course of which the motion of no-confidence was carried against him. He argued that the procedure adopted at the meeting was in violation of rules 5 and 6 of the Rules. Rules 5 and 6 read as follows : (2) If the motion has been seconded, it shall be open to the consideration of the local council and any member may speak for or against the motion. (3) ... (4) The Chairman or the Vice-Chairman against whom a motion of no confidence has been moved shall have the right to offer a personal explanation either verbally or in writing, and where a written explanation is offered, it shall be circulated amongst the members and shall form part of the record of the proceedings of the meeting. 6(1) When in the opinion of the Presiding Officer, the motion of no confidence has been sufficiently discussed, he shall call upon the members to vote for or against the motion. (2) . (3) . .." It is alleged on behalf of the petitioner that he was not given an opportunity to offer his explanation and that sufficient time was not provided for the discussion of the motion. A copy of the minutes of the meeting has been placed before us. It appears that the petitioner did address the meeting. Thus, he had opportunity to offer a personal explanation. We also find that the motion was put to vote only after it was indicated to the Presiding Officer by the members present that sufficient discussion had taken place. It does not appear that during the course of the meeting the petitioner had at G any time taken the position that he was not being provided with sufficient opportunity to explain his position or answer the allegations being levelled against him or that the motion should be discussed at greater length before it was put to the House. We must, therefore, reject the contention that the meeting of 30-12-1984 suffered from any illegality.

10. Rule 6(5) of the Rules states that the motion of no-confidence shall be deemed to have been carried if it is passed by a 2/3rd majority of the total number of members. The expression "total number of members" has been defined in the explanation to Rule 2(4). It reads as follows : "For the purpose of these Rules, the expression `total number of members' shall mean the total number of elected members constituting the local council at the relevant time whether as representatives of Muslims or those of non-muslims or of peasants, worker and women." The words "relevant time" as occurring in this explanation, are of significance for they indicate that while interpreting the expression "total number of members" we are not to take into account the total strength of the Local Council but that we should consider only the total number of elected members of which the Local Council stands composed of at the relevant point of time. Now, the total strength of Faisalabad Municipal Corporation is

88. On 30-12-1984, the election of one member had been set aside. Although in a writ petition filed by him the operation of the order of the Election Tribunal had been suspended, a notification deseating him had been issued. But this is not really material for the motion against the petitioner was supported by 59 members and they constituted more than two-third majority irrespective of the fact whether we take total membership of the Corporation as 87 or 88.

11. For the reasons stated above, we find no merit in this writ petition which is, hereby, dismissed with costs. . Petition dismissed.