ABDUL SHAKURUL SALAM, J.--This order will dispose of Writ Petitions Nos. 4590/81, 4593/81 and Writ Petition No. 4673 of 1981 as these involve the same question of law.
Writ Petition No. 4590 of 1981
2. Petitioners assumed office of Chairman and Vice-Chairman of Union Council, Burj Attari, Tehsil Ferozewala, District Sheikhupura on 17-1-1980. An application was moved by ten members of the Council for holding of a meeting for passing no-confidence motion against the aforesaid Chairman and Vice-Chairman, on 24-8-1981 and the meeting was called for 2-9-1981. It was adjourned to 8-9-1981. Before this date, it was cancelled on 5-9-1981. Another application was moved. On 17-9-1981 on which the meeting was called for 26-9-1981. Before thus date, the petitioners filed the Constitutional petition saying that the same was beyond the period specified under section 31 of the Local Government Ordinance, 1979. The petition was admitted and it was directed that "meanwhile, no-confidence motion shall be tabled and considered in accordance with law, but the Presiding Officer shall not declare the result till the decision of this petition." This is vide order dated 23-9-1981.
Writ Petition No. 4593 of 1981
3. The petitioner assumed the; office of Chairman, Municipal Committee, Sangla Hill on 17-1-1980.
An application was moved on 2-9-1981 for holding a meeting for consideration of a no-confidence motion on which notices were issued on 5-9-1981 for holding the meeting on 13-9-1981 but on the application of the petitioner to the Deputy Commissioner on 7-9-1981 that the motion could not be moved, after obtaining the opinion of the District Attorney, the Deputy Commissioner cancelled the meeting on 10-9-1981. Another application was moved on 17-9-198 t on which the matter was examined by the Asstt : Director Local Government who opined that the meeting could be held. 'The Deputy Commissioner allowed the holding of the meeting vide order dated 19-9-1981, on 27-9-1981.
Before this date, the petitioner filed the Constitutional petition which was admitted and an interim order was passed to the effect that "Meanwhile the meeting for the consider--ation of no- confidence motion shall take place on the appointed date, but the Presiding Officer shall not announce the result." This is vide order dated 23-9-1981.
Writ Petition No. 4673 of 1981
4. The petitioner as;; med the offce of Chairman, Union Council Jarmote Kalan, Tehsil Gujjar Khan, District Rawalpindi on 17-1-1980. An application was made on 12-9-1981 for holding of a meeting for consideration of no-confidence motion on which notice was issued on 13-9-1981 for the meeting to be held on 20-9-1981. The meeting was held and no-confidence motion was passed by the two- third majority, 8 to 2 votes. The petitioner challenged the order by means of the Constitution petition which was admitted and operation of the impugned order was suspended subject to notice. This is vide order dated 29-9-1981. All these matters have come up for final hearing.
5. For facility of understanding the arguments of the learned counsel for the parties, it would be appropriate if section 31 of the Punjab Local Government Ordinance, 1979, both unamended and amended, are quoted. These are as follows :- Section 31 (as unamended)
"Vote of no-confidence.-A Chairman or 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 Provided that-
(a) a motion of no-confidence shall not be moved before the expiry of six months of his assumption of office as chairman or Vice-Chairman ; and
(b) where a motion of no-confidence against a Chairman or a Vice --Chairman has been moved and has failed to secure the requisite majority of votes in its favour at the meeting, no similar motion will be moved against him before the expiry of six months from the date such motion was moved."
Section 31 (as amended)
"(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.
(2) A motion of no-confidence against a Chairman or Vice-Chairman shall not be moved before the expiry of six months from the date of his assumption of the office and a second or subsequent motion shall not be moved except with an interval of six months between the first and the second motion or any two subsequent motions.
(3) A motion of no-confidence shall not be competent after the expiry of thirty days beyond every interval of six months provided under subsection (2) and in such a situation it shall be deemed to have been moved and rejected for the purposes of subsection (2)."
Sections 2, 3 and 5 of the Punjab Local Councils (Vote of No-Confidence Against Chairman or Vice- Chairman) Rules, 1980 are as follows : - "2. Requisition for convening a meeting for moving of vote of no-confi--dence.-(1) Not less than one-half of the total number of members of a local council may, by a written requisition signed by them, require the convening of a special meeting of the local council to consider the motion of no- confidence against the Chairman or the Vice-Chairman of the local council.
(2), (31 & (4).
3. Convening of meeting ' to consider !He motion of no-confidence.-(1)
The authority to whom the requisition under rule 2 is made shall, within 15 days of the receipt of such requisition, convene a special meeting of the local council to consider the motion of no- confidence.
(2), (3), (4). . . . -
5. Motion of no-confidence.-(1) At the meeting convened under rule 3, any member who has signed the requisition under sub-rule (1) of rule 2 may move the no-confidence motion against the Chairman or the Vice-Chairman, as the case may be.
(2), (3) and (4) . . . ."
6. Mian Fazal-e-Mahmood, Advocate assisted by Syed Jamshed Ali, Advocate appearing for the petitioner in the second case (W. P. 4593/81) who led the arguments, raised the first contention with reference to facts, that when on the first application the holding of the meeting was cancelled by the Deputy Commissioner, he had no right to review that order on the second application and could not order holding of the meeting on 27-9-1981 as he had no locus poenitentiae. He has placed reliance on Pakistan, through the Secretary, Ministry of Finance v. Muhammad Hamayatullah Farukhi PLD 1969SC407He also submitted that the subsequent order was mala fide.
On the question of law involved in all these petitions, the learned counsel argued that a perusal of the unamended and amended section 31 of the Punjab Local Government Ordinance, 1979 would show that the intention of the Legislature was to provide security to the office-holder and therefore, no-confidence motion could not be moved except with the interval of six months. He submitted that a motion of no-confidence cannot be moved before six months, and the period of each six months will be counted to see as to whether a motion can be moved. He submitted that in his case, the petitioner assumed the office of Chairmanship on 17-1-1980. Six months would expire on 16-7-1980, next six months on 15-1-1981 and next six months on 14-7-1981. Thereafter in view of subsection (3) of section 31 (amended) of the aforesaid Ordinance after a period of 30 days viz. 13- 8-1981, a motion of no-confidence could not be moved and will be deemed to have been rejected.
Consequ--ently, the application moved on 17-9-1981 in which the meeting was ordered to be held on 27-9-1981 would be without lawful authority. Learned counsel also submitted that the first application for holding of a meeting for consideration of no-confidence motion dated 2-9-1981, will amount to moving of the no-confidence motion and, therefore, no second- motion for no- confidence could be moved before the expiry of six months. For the proposition that an application for holding of a meeting for consideration of no-confidence motion amounts to moving of a no- confidence motion, Syed Jamshed Ali, Advocate read out from the Black's Dictionary the meaning of motion which is as follows :-- "Motion.-In parliamentary law, the formal mode in Which a member submits a proposed measure or resolve for the consideration and action of the meeting.
An application made to a court or judge for purpose of obtaining a rule or order directing some act to be done in favour of the applicant State v. James Mo. 347 S. W. 2d 211, 216. It is usually made within the framework of an existing action or proceeding and is ordinarily made on notice, but some motions may be made without notice. One without notice is called an ex parte motion.
Written or oral application to court for ruling or order, made before (e. g motion to dismiss) during (e. g. motion for directed verdict), or after (e. g. motion for new trial). For requisite form of motions."
7. Learned counsel for the petitioners in the first petition (W. P. 4590/81) also submitted that an application for moving a resolution amounts to moving of motion and, therefore, when on the application dated 24-8-1981 meeting was called for 8-9-1981 and cancelled on 5-9-1981, another motion could only be moved six months thereafter.
8. Learned counsel for the petitioner in the last petition (W. P. 4673/81) adopted the arguments of his predecessors and added that if the period of six months is to be reckoned, then the motion could be moved by 18-7-1981 and the period will expire under subsection (3) of section 31 as amended on 17-8- 981 and .Thereafter the meeting on 20-9-1981 will be illegal. In the alternative, if after six months period . 30 days of the last mentioned provision are also to be added for commencement of the next interval, then the motion could be made not earlier than 18-9-1981 and, therefore, the requisition moved on 12-9-1981 and notice issued on 13-9-1981 for the meeting to be held on 20-9-1981 were illegal.
9. The learned Assistant Advocate-General appearing in the first petition submitted that when actually a no-confidence motion had been moved and rejected, the period of six months will start therefrom. In case no motion was moved and is to be deemed to have been moved and rejected in view of subsection (3) of section 31 amended, then the period will start after 30 days thereof. ,
10. Mr. Arif Iqbal Bhatti, Advocate appearing for respondents Nos. 2 to 11 excepting 8 and Raja Muhammad Muzaffar, Advocate appearing for respondent No. 8, submitted that the Authority concerned could fix the second meeting. He placed reliance on Malik Ghulam Muhammad v.
Collector and Deputy Commissioner, Sargodha 1968 SCMR 739
11. Mr. Abid Hassan Minto, Advocate appearing in the second petition has submitted that for the first motion of no-confidence. The only limitation is that it cannot be moved within six months of assumption of office. Thereafter, it care be moved any time and it is not necessary that immediately after six months a motion of no-confidence should be moved or that immediately after the next six months such a motion be moved. This will be against the public policy that even if the members have confidence in their Chairman and Vice-Chairman, then after the permissible six months, they must move a motion of no-confidence or they would lose their right for the next six months. His submission is that the amendment in section 31 was intended to restrict moving of no- confidence motions and not to encourage that in that event if the members do not want to move a motion after the first six months, they must move it or lose their right for the next six months and so on. He also submitted that the rules aforemen--tioned make a distinction between the requisition of a meeting under rule 2 and of moving the motion under rule 5. Therefore, the applications for convening the meeting. For moving of the motion do not amount to moving of the motion and consequently, if the meetings were not held on the first applications, there was no bar to move other applications.
11-A. Mr. Zia Mahmood Mirza, Advocate appearing in the third petition (W. P. 4673/81) submitted that the petitioner had an adequate alternate remedy under section 156 of the Ordinance and, therefore, the petition is in--competent. He placed reliance on a decision in Writ Petition No. 12277 of 1980, dated 10-1-1981. He also submitted that the petitioner is not entitled to discretionary relief under the Constitution when he has been out-voted by the two-third majority of the electorate 8 to
2. He submitted that for holding a public representative office, a person must retain the confidence of the electorate and if it is not there, he cann3t seek the assistance of Courts for being imposed on the electorate even if there has been some irregularity or illegality in removing him from the representative office. He placed reliance on Mazdoor Ittehad Union v. Registrar of Trade Unions, Multan Region, Multan and 2 others PLD 1977 Lah. 588
12. In reply to the contention regarding alternate adequate remedy the learned counsel for the petitioners submitted that besides that they themselves have no right to invoke the remedy under section 156 of the Ordinance, and it is only for the Government to take action, if it so desires it was no use invoking the jurisdiction of the Government because the latter had already issued instructions on the point, on the basis of which the motions against the petitioners were moved.
13. Before proceeding further it may be observed that the writ petition referred to by Mr. Zia Mahmood Mirza, Advocate (W. P. No. 12277,/80) was dismissed on the ground that there was an alternate remedy under section 156 of the Ordinance but the question does not appear to have been argued and the petition was dismissed in limine. I n the present case, the contention of the learned counsel for the petitioners is quite right that it would be futile to move the Government because it has already expressed its opinion on the point vide memo. No. BS(R-18/80) dated 27-9- 1981 and the questions involved are purely of law. Moreover, the matter is most likely to come back to this Court if the petitions are rejected on this ground. We have also heard the learned counsel for the parties for two days and we think that it would be in the interest of justice and quicker conclusion of the controversy on a pure question of law, if the matter is decided on merits.
Therefore; we proceed to determine these petitions. The contention of the learned counsel for the petitioners regarding the applications for convening of a meeting for moving a no-confidence motion may be disposed of first. Not only requisition of a meeting and moving of a motion are two different things as these are separately dealt with under rules 2 and 5 of the aforementioned Rules, 1980 but the definition of motion relied upon by one of the learned counsel for the petitioners also makes it quite clear that in representative Institution "the formal mode in which a member submits a proposed measure or resolve for the con--sideration and action of the meeting" presupposes that the motion is the matter which is considered in the meeting and not request for holding of the meeting. Therefore, the first applications moved by the members for holding of meeting do not amount to moving of the no-confidence motion. The other argument in this behalf that after the order of cancella--tion of meetings on the first applications, the concerned authority had no right to review or had no locus poenitentlae, has no force either for the reason that question of review does not arise as the matter was purely administrative, rejecting an application or accepting it thereafter, for holding of a meeting. It was not determinative of anybody's rights. Nor , the question of locus poenitentiae arises, because by rejection of first application for holding of meeting, the authority by its own act was conferring no right or benefit on anybody which it could not withdraw.
The authority in its administrative capacity first felt that meeting could not be called but when it was better advised that it could be held, it allowed on the second applications holding of the meeting. There was no illegality involved, or, male fide. The authority acted as it thought fit at one point of time and when--it--was advised to the contrary it ordered accordingly. The order/ of holding meeting on the second application was in accordance with law ash. will be seen when the main controversy is dealt with presently.
14. Now we come to the crux of the controversy. The petitioners assumed office on 17-1-1980. No no-confidence motion was moved until in the impugned meetings. We have already held that the first applica--tions for holding of meetings in the first two cases were aborted and those did not amount to moving of no- confidence motion. In the third case no such application was earlier moved. Therefore in all the three cases, it was the first motion of no-confidence which was moved in the meetings, impugned in these petitions. Consequently, we have to see whether the motions in the meetings were validly moved. The relevant provision is subsection (2) of section 31 of the Ordinance and it lays down that;-- "A motion of no-confidence against a Chairman or Vice-Chairman shall not be moved before the expiry of six months from the date of his assumption of the office and a second or subsequent motion shall not be moved except with an interval of six months between the first and the second motion or any two subsequent motions."
A bare reading of the subsection will show that first motion of no---confidence shall not be moved until after six months. It may be moved thereafter any time. And, a second or subsequent motion shall, again ,'be not moved before the interval of six months. Thereafter, it may be moved.
So far so good, so was the law unamended. But addition of subsection (3) of section 31 which is to the following effect :- "A motion of no-confidence shall not be competent after the expiry of thirty days beyond every interval of six months provided under sub--section (2) and in such a situation it shall be deemed to have been moved and rejected for the purposes of subsection (2);" has led to the argument raised by the learned counsel for the petitioners that for the first motion as well after a period of six months even if a motion of no-confidence is not moved, it shall be deemed to have been moved and rejected. The argument is specious but a little exacting delibera--tion will expose the barrenness. Subsection (3) applies to "every interval of six months provided under subsection (2)" and subsection (2) deals C with the interval of six months in the context of second or subsequent motion when it provides that "a second or subsequent motion shall no be moved except with the interval of six months between the first and the second motion or any two subsequent motions." This interval of six months has no relevance to the first motion.
The first motion can be moved any time after the expiry of six months from the date of assump-- tion of office. Secondly, subsection (2) deals with interval "between the first and the second or subsequent motions," and not prior thereto i.e. To the first motion. Therefore, subsection (3) has no application to the facts of the cases in hand. All these relate to first motion. There are two more principles involved. First that the amendment by subsection (3) was made to avoid quick moving of no-confidence motions. Though elected offices are held as long as the holders enjoy and retain the confidence of the electorate but the Legislature in its wisdom found it fit to provide that before six months expiry, no no-confidence motion shall be moved, nor, after its rejection or deeming rejection it shall be moved for another sic months, The idea o; intention is c1Cac that is to provide security to the office holders. Therefore, if the first motion is not moved immediately after six months, it need not be taken that it was moved and rejected. The office holder may continue to enjoy the confidence thereafter. He need not be put on tenter hook, nor, members tempted to move the motion immediately after six months on the pain of losing their right for the next months. The second principle is whether discretionary Constitu--tional jurisdiction should be so exercised in favour of a holder of representative office that he may remain installed therein, even though he has lost the confidence of the vast majority of his constituents-in these cases two-third majority.
Petitioner in the third case has so lost the majority. In the first two cases, result of the voting has not been announced because of the prohibitory order of the High Court at the interim stage. It can well be imagined by the vigour with which these two petition were pressed. Exercise of discretionary jurisdiction in favour of such holder of representative offices is contrary to the intention of law which provide for representation of the electorate and against public policy as well, which is part of law discernible from the statute itself, because such an office--holder can hardly carry on the functions of the office as he will be out--voted on each and every item and will command no respect which is pre--requisite for administering and smooth functioning of the office.
15. For the foregoing reasons, we find that the motions were first and for those it was not necessary that those should have been moved immediately after six months. If the electorate continued to have confidence in its representatives, it was not obliged to act contrary to its inclination and embarrass the holder of its confidence. If occasion arises afterwards, it can exercise its authority and power then. We are also of the view that these cases are not fit for exercise of Constitutional jurisdiction. Therefore, we dismiss these petitions with costs.