' GUL MUHAMMAD KHAN, J.-This order shall also dispose of two other writ petitions namely 1713 and 1979 of 1981, which involve the same questions of law.
2. The petitioner was an elected Chairman of Union Council 218, Tehsil and District Faisalabad. Later, a vote of no-confidence was moved against him by respondents 2 to 13 on 20th January, 1981. A meeting was ordered to be convened under the orders dated 24th January, 1981 of the Assistant Commissioner, respondent No. 1, for 4th February, 1981 at 11-00 a.m. This meeting was, however, adjourned on a complaint made by Muhammad Anwar respondent that Mukhtar Ahmad respondent, a member, had been kidnapped. The Assistant Commissioner directed that the meeting will remain adjourned till the recovery of the kidnapped member.
3. On 10th February, 1981 respondent No. 1, passed an order to convene the meeting on 19th February, 1981 at 11-00 a. m. To consider the no-confidence motion against the petitioner. He challenged that order in Writ Petition No, 819-81, but the same was dismissed in limine, as premature, by a Division Bench of this Court on 18th February, 1981. The petitioner was, however, allowed to raise all his objections before respondent No. 1.
4. On 19th February, 1981 the objections raised by the petitioner were overruled and the motion was duly carried with the requisite majority. It is that order which is being challenged through the present writ petition.
5. The learned counsel has raised the following points :
(1) the amendment made in the Vote of No-Confidence Rules vide notification dated 18th December, 1980 providing that the Assistant Commissioner shall preside on the meetings of the Union Councils, for the consideration of a vote of no-confidence, is ultra vires section 38(2) of the Punjab Local Government Ordinance. Further, it is in conflict with the Punjab Local Council (Business) Rules, 1980 ;
(2) assuming that the Assistant Commissioner could preside on the said meetings the impugned order is bad because the mandatory provision for holding the meeting within 15 days has not been complied with ;
(3) only one special meeting is envisaged by law and, therefore, no second meeting on the same motion could be held. Alternatively, as the meeting was not convened it shall be deemed that the motion had been rejected ;
(4) the rule permitting the Assistant Commissioner to preside on the meeting is also in conflict with the Punjab Local Council (Appeal) Rules, 1980 inasmuch as that though an appeal lies against such orders to the Assistant Commissioner, he himself has been asked to preside on the meeting in which the motion is to be considered and decided.
6. After hearing the learned counsel at length, we have come to the conclusion that none of the points have any merit. It may be noted that section 31(1), under which the rules had been made, to authorise the Assistant Commissioner to preside over the meeting, lays down :- "31.-(1) A Chairman or a Vice-Chairman shall vacate office if a vote of no-confidence is passed against him in the manner prescribed. By two-third majority of the total number of members of the local council electing him."
7. The word 'prescribed' in the above provision has been defined in section 3 (xxix) as under :- " 'prescribed' means prescribed by Rules ;" Section 167 lays down that,:- "167.-(I) Government may make rules for carrying out the purposes of the Ordinance.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters specifically required to be provided under the Ordinance and all matters incidental, consequential and supplemental thereto."
' There are thus two types of rule-making power. One is a general power while subsection (2) requires that rules may provide for matters specially required to be provided for. Section 31 as said above, has a specific requirement and it has nothing to do with the executive authority the Local Council and the way it is to be conducted. Section 36 gives its scope and lays down that it shall vest in and be exercised by the Chairman, as may be prescribed. Section 37 deals with the disposal of the business of a local Council, in the manner prescribed, at its meeting or on the meeting of its sub-committees or by its Chairman or servants or other functionaries. Thus section 36(2) requires rules to be made for the vesting and exercise of the executive authority of the Local Council.
Section 37(1) lays down that the business of a Local Council is to be disposed of to the extent and in the manner prescribed. Section 38(1) authorises a Local Council to frame bye-laws for the conduct of its meetings to provide for the matters as mentioned thereunder. It is for such meetings that the Chairman etc. Have to preside on them.
8. It will be noticed that sections 37 and 38 do not talk of any meeting to be held for a no- confidence motion. It is not one of the types of meetings mentioned in section 38 (1) (a). The other important difference is that while the manner of the other meetings under section 38 is to be provided for in bye-laws, to be made by a Local Council itself, rules are to be made by the Government, with regard to the meetings for a no-confidence motion'. Had the purpose of the section 38 been. To cover the situation in section 31, it would not have made a specific provision, of prescribing a manner, by which two-third majority of the total number of members of the Local Council electing him, would be required to pass a vote of no-confidence.
9. The Business Rules referred to above are made under sections 36 and 37 and they deal only with matters concerning functions of a Local Council. These rules, therefore, will not apply to something which concerns the constitution of a Local Council itself. In this view of the matter, the rules made under section 31 providing that the meeting, shall be presided over by the Assistant Commissioner, has nothing to do with the provisions under section 38(2), laying down that all meetings of a Local Council shall be presided over by its Chairman and in his absence by the Vice-Chairman, etc.
10. In any case, in order to rely on section 38(2) the petitioner ought to have shown that the matter included in section 31 is also covered by any of the subjects as given in sections 36, 37 and 38. As said above, the situation covered by section 31 concerns the constitution of a Local Council weld not with regard to its executive authority or conduct of business.
11. The second point raised by the learned counsel stands covered by a judgment of the Supreme Court in Allah Bachaya Khan v. Controlling Authority (1) by which it upheld the judgment of the High Court in Abdul Majid v. Province of West Pakistan (2). It was held by the Supreme Court as under :- "The petitioner was a Chairman of the Union Council, Kachi Khan Muhammad, Tehsil Rajanpur, District Dere Ghazi Khan. A vote of no-confidence was passed against him at a meeting held on 29th June 1968. By the writ petition he challenged the same on the ground that seven clear days' notice of the meeting, as required under rule 3(2) of the West Pakistan Basic Democracies (Vote of No-confidence against Chairman) Rules, 1967, was not served on him.. Relying on the decision in Abdul Majid v. Province of West. Pakistan and others (PLD 1964 Lah. 531) the Division Bench held "that the provision of the said rule was only directory and in the absence of any prejudice caused to a person the nonobservance of the rule does not affect the proceedings". In or opinion, the High Court has correctly interpreted this rule. We, therefore, see no ground for interference in this case.
This petition is. Accordingly, dismissed."
12. As regards the third point, it is to be noted that it was not a second meeting that was held on 19th February, 1981. The facts as given by the petitioner also do go to show that the first meeting had been adjourned by the Assistant Commissioner as one of the members was reported to have been kidnapped. Consequently, neither was the motion considered or discussed nor put go vote.
The adjournment of a meeting in this way did not necessarily mean that the motion at the previous meeting shall be taken to have been discussed and rejected. The adjournment covered a specific situation which had to be taken care of, in the interest of the motion and we are not persuaded to say that the same was mala fide or unlawful.
13. As for the fourth point it cannot be said that as the two sets of rules overlap, one must give way to the other. It may further be {{FOOT NOTE}}
(1) 1969 SCMR 127 (2) PLD 1964 Lah. 531 {{FOOT NOTE}} noted that the passing of a vote of no-confidence is not an order, passed by the Local Council.
Reference be made to Sh. Ghulam Mohiuddin v. Commissioner (1). As said above, it is a special situation concerning the constitution of the Local Council itself and, therefore, it neither amounts to conducting business with regard to any of its functions nor will it amount to passing an order in exercise of any authority.
14. It any case the best that could be said is that one rule will prevent a party from exercising a right of appeal under another rule. It may only be construed a legislative omission but can in no way amount to declaring one set of rules as bad justifying any interference by this Court.
' In view of the above, we find no merit in this petition and dismiss it, leaving the parties to bear their own costs. {{FOOT NOTE}}
(1) PLD 1957 Lab. 826 {{FOOT NOTE}}