P L D 1963 Supreme Court 623 (PLP)

(2) All meetings of a Local Council shall be presided over by its Chairman, and, unless otherwise provided by this Order, in his absence by a member chosen for that purpose by the members present. (3) A Local Council shall have power to act notwithstanding any vacancy in its membership. (4) No proceedings shall be invalid by reason only that some person who was not entitled to do so, sat or voted, or otherwise took part in the proceedings. (5) Minutes of the meetings of a Local Council shall be drawn up and recorded in a book to be kept for the purpose. (6) All decisions taken by a Local Council shall be reported to the Controlling Authority within the prescribed period." With respect to the applicability of Article 39 (4) learned counsel for the appellant has contended before us :‑ (i) that the election of Chairman is not a business of the Union Council because rules relating to transaction of business had been framed by the Governor only on the 30th June, 1960, and clause (4) of this Article is applicable only to disposal of business ; and (ii) that clause (4) applies only to a meeting presided over by the Chairman of the Union Council. As regards the first of these contentions it will in the first place be noted that clause (4) does not speak of disposal of business at all. It speaks of proceedings. On this point the contention of learned counsel is that clause (4) should be read as being subject to clause (1) which speaks of disposal of business and although in clause (4) reference is only to proceedings the clause will not be applicable unless there be disposal of business. But the Legislature has deliberately used the word "proceedings" and has not used any words of limitation confining the proceedings to those relating to disposal of some business of the Union Council. Even if it be assumed that clause (4) relates only to disposal of business the clause remains applicable to the proceedings with which we are concerned. That the election of a Chairman is business of a Union Council cannot be denied. Learned counsel accepts that if on account of resignation or otherwise the office of the Chairman became vacant and another Chairman was to be elected such election would be a business of the Union Council. What he urges is that rules relating to transaction of business by the Union Councils were framed by the Governor in exercise of the powers vested in him under Article 89 of the Basic Demo cracies Order only on the 30th June 1960, and as Article 39 refers to the extent and manner prescribed no business of the Union Council could be said to be transacted till rules were framed by the Governor with respect to it. Assuming that the framing of rules was necessary for the disposal of business a simple reply to the argument of learned counsel is that rules relating to the elec tion of the Chairman which are called "The West Pakistan Basic Democracies (Election of Chairman) Rules" had already been framed on the 11th January 1960. These rules provide for the procedure to be adopted for the election of the Chairman. So with respect to the disposal of this business rules had already been framed. It is of no consequence that general rules as to disposal of business were framed later. It was not necessary for the Governor to frame only one set of rules with respect to the disposal of the whole of the business of Union Councils. It was open to the Governor to frame rules with respect to any particular business and henceforth that business could be disposed of by the Union Council. We should not be understood at the same time as laying down that the framing of rules was essential for the disposal of any business. The Governor was empowered to frame rules and if the rules were framed the Union Council would be bound by them, but that does not mean that in the absence of rules the Union Council had no power to dispose of any business. The second objection of learned counsel for the appellant to the applicability of clause (4) of Article 39 is of no greater force. Before proceeding further the provision under which the first meeting of a Union Council is held has to be explained. Under the West Pakistan Basic Democracies (Assump tion of Office) Rules, 1960, after the notification of the names of members of a Local Council the Controlling Authority appoints a date for the assumption of office by the Local Council and for that purpose a meeting of the Union Council has to be held. This meeting is to be presided over by a gazetted officer to be nominated by the Controlling Authority for this purpose. The Presiding Officer administers oath of office to the members of the Union Council present at the meeting and after such oath has been administered, he calls upon the members to elect their Chairman. The contention of learned counsel is that in accordance with clause (2) of Article 39 all meetings are to be presided over by a Chairman or in his absence by a member chosen for that purpose by the members present and that clause (4) is applicable only to a meeting which is presided over in accordance with clause (2). As already observed clause (4) applies to proceedings and does not speak of a meeting, but assuming that it applies only to a meeting, we do not see why at least the principle embodied in clause (4) should not be applicable to a meeting held under the Assumption of Office Rules which is presided over by an officer appointed by the Controlling Authority. It is obvious that the first meeting which is held before the Chairman is elected cannot be presided over in accordance with Article 39 (2). It could not have been the intention that a different principle should apply to this first meeting and an irregularity which if it occurred in another meet ing would be condoned is not to be condoned because it occurs in this meeting. We have dealt with the argument as presented but we would point out the proper approach in a case like the present. The election petition filed against the election of the respondent had been filed under rule 7 of the Basic Democracies (Election of Chairman) Rules. This rule runs "

7. Election Petition.‑(1) No election of a Chairman shall be called in question except by a petition presented to the Con trolling Authority within thirty days of the declaration of the result. (2) The Controlling Authority may after such enquiry as may be necessary, uphold the election of the Chairman, or declare the election as void for any material irregularity, or any sufficient reason to be recorded. (3) Where an election is held to be void, a fresh election shall be held in the manner provided by these rules." The rule provides that the election can be set aside on the ground of material irregularity or any sufficient reason. The question to be decided by the High Court was whether any material irregularity or sufficient reason had been established before the Controlling Authority on the basis of which the election could be set aside. It had not even been alleged by the appellant that the irregularity TOW upon was material. There was no plea that Abdul Majid who proposed the name of the respondent had vote for the respondent and that if his vote was not counted j the result of the election would be affected. The only question for consideration was 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. According to Article 39 (4) the fact that the person who voted was not entitled to vote does not by itself vitiate any proceeding and it cannot, therefore, be said that this could constitute "sufficient reason". At the same time it is difficult to accept that irregularities which are not material can be "sufficient reason." The ground of attack is admittedly an irregularity and it is not alleged that it is material. An anomaly would be created if immaterial irregularities could be made a ground for setting aside an election by bringing them within "sufficient reason". Irregu larity having been separately dealt with should be deemed to have been excluded from "sufficient reason". This appeal fails and is dismissed with costs. A. H. Appeal dismissed.