' MUHAMMAD ASLAM MEAN, J.-The petitioner through this writ petition seeks the quashing of the orders dated 3-6-1984 and 25-6-1984 of respondent No, 1, the Assistant Commissioner, Mailsi and the proceedings dated 3-7-1984, taken on the motion of no-confidence against the petitioner in which the motion was carried, being without lawful authority and of no legal effect.
2. The brief facts of the case are that the petitioner assumed the office as a Chairman of Union Council No, 40 Rath Mummer on 14-11-1983 whereby the first meeting was held on the same day. On 2-5-1984, a written requisition was made before the predecessor in office of respondent No, 1 by Muhammad Rafiq and nine others for convening a special meeting of the Union Council to consider the motion of no-confidence against the petitioner. The requisition was rejected on 13-5- 1984 for the reason that the mandatory period of six months had not yet passed. The requisition brought was pre-mature. Muhammad Rafiq etc. Once again submitted a requisition on 26-5-1984 for convening a special meeting to consider the motion of no confidence against the petitioner.
The predecessor-in-office of respondent No, 1 vide his order dated 3-6-1984, treating the requisition as well within time made after the expiry of six months as laid down under section 3l of the Punjab Local Government Ordinance, 1979 accepted the written requisition of the councilors and convened on 3-6-1984 a special meeting to be held on 9-6-1984 at 10 a.m. In the office of the Union Council No, 40 Rath Mummer. The meeting was to be presided over by respondent No, 2, therefore, the notices as required under rule 3 of the Vote of No Confidence rules were given to the members of the Union Council. The petitioner thereupon filed an appeal before the Deputy Commissioner, Vehari who stayed further proceedings in the matter. Subsequently the Deputy Commissioner, Vehari vacated the stay order on 12-6-1984, realising that he had no authority to deal with the matters concerning the Union Council. This order of the Deputy Commissioner was received in the office of the respondent No, 1 on 20-6-1984 on which date the petitioner submitted on application to respondent No, 1 apprising him that the earlier requisition of Muhammad Rafiq and others for convening a special meeting of the local council to consider the motion of no- confidence against the petitioner was rejected on 13-5-1984 and the second requisition was moved on 26-5-1984. On 3-6-1984, a special meeting was convened for 9-6-1984, and the notice issued thereunder was allegedly sent to him on 8-6-1984, a day before the very holding of the meeting which was in clear violation of the rules and as such all the proceedings earlier conducted were illegal and void ab initio.' As submitted above this application was dismissed by respondent No, 1 vide order dated 25-6-1984, observing.
"The counsel of the Chairman of Union Council No, 40 Rath Mummer has raised a point that since the application was moved on 26-5-1984, and it was required under the law that a special meeting be held within the 15 days of the written requisition by the Councillors, it is thus time barred and a subsequent motion of no-confidence may be moved after the expiry of six months. The learned counsel for the respondents (10 councillors of Union Council No, 40) has referred to the judgment contained in PLD 1982 Lah. 84 to 91 given in the case of Ch. Barkat Ali v. A. C. Ferozewala and 10 others, wherein it has been held that expiry of 6 months has no relevance to the first motion. The first motion can be moved any time after the expiry of 6 months from the date of the assumption of office. In this case even the written requisition was presented well within the prescribed period of time. The meeting was delayed due to stay order by the Deputy Commissioner Vehari which has now been vacated The condition of 30 days does not apply to the first motion as elaborated by learned Judges of the High Court in PLD 1982 Lah.
83. This condition is applicable only in subsequent motions of no-confidence. Thus, it being a first motion of no-confidence and well within the time, I see no reason to disallow the request of the members Union Council for convening a special meeting and thus the petition of the Chair-man of Union Council No, 40 Rath Mummer is dismissed Respondent No, 1, after dismissing the application directed the holding of the special meeting to consider the motion of No-Confidence on 3-7-1984.
3. On 3-7-1984, the proceedings were held under the chairmanship of Malik Muhammad Khan, E. A.
C./Resident Magistrate (respondent No, 2). The petitioner reached there at 10-30 a.m. And the voting was held in his presence whereby out of 13 Councillors 12 voted in favour of the motion. The petitioner refused to say anything in explanatory defence.
4. The learned counsel for the petitioner has dropped his first contention that the motion of no- confidence was not moved within the stipulated period of 30 days after six months as envisaged by subsection (3) of section 31 of the Punjab Local Government Ordinance, 1979 in view of Ch. Barkat All and another v. Assistant Commissioner Ferozewala and others (1), a decision also relied upon by the learned counsel for the respondents wherein it is inter alia held that the first motion can be moved at any time after the expiry of six months from the date of the assumption of office.
5. The learned counsel has next contended that the meeting was not convened within seven days from the receipt of the requisition as required by rule 3 of the Punjab Local Councils (Vote of No- Confidence against Chairman or Vice-Cnairman) Rules, 1980 (hereinafter referred to as the rules).
The requisition was received on 26-5-1984, while the meeting was convened on 3-7-1984. It was the eighth day. This violation of the rule has the effect of vitiating the holding of the meeting and the proceedings. The learned counsel has emphasised that the rule is of a mandatory import because the word "shall" has been used therein and whenever a law prescribes a procedure that must be observed otherwise a thing cannot be regarded as having been done at all. The learned counsel has relied upon Mian Masood Ahmad v. Assistant Commissioner (2), in this case the contention of the learned counsel for the petitioner was that the petitioner Mian Masood Ahmad was not given 7 days' notice as provided under rule 3(2), so the petitioner was obviously prejudiced because he had not enough time to meet the members to explain his conduct and seek their support. In that context it was observed that "non-compliance with the rules may not be always fatal, moreso if those be directory as contended by the learned counsel for the respondents Nos. 3 to 9 with reference to reported decisions, but all the same it cannot be held that the rules or laws may not be followed with impunity even if those deprive the person concerned of time allowed by law to arrange for his defence. The judgments relied upon lay down that non-compliance with directory rules will not annul the proceedings, if no prejudice is caused. In the present case it is apparent that prejudice has been caused to the petitioner that he did not have
(1) PLD 1982 Lab. 83 (2) PLD 1983 Lah. 92 seven days' notice within which he could approach and pursuade his colleagues not to move no- confidence motion against him." It was further observed as to rule 5(4) that, "the rule is apparently mandatory as it says that the written explanation "shall" be circulated. Even if the word "shall" is construed to mean "may", then too it has to be noticed that it is being used in the context of the 'right' of the petitioner and that cannot be whittled away by sophistry Therefore, we are quite clear in our minds that the proceedings were conducted without due regard to the relevant provisions of law, the petitioner was not allowed the benefit of law, deprived of his right and prejudicially affected by unholy haste in ousting him from his office. The proceedings were from start to finish without lawful authority." This decision has its importance and weight but in a different context, since the intention regarding that is to provide a clear seven days' notice for holding a meeting as conveyed to enable every body to prepare himself qua the role which is to be played. The provision which is being invoked here fixes a time of seven days within which on the receipt of the requisition a special meeting of the local council to consider the motion of no-confidence is to be consented with an intention behind it that the authority to whom the requisition is made may not unnecessarily delay the convening of the special meeting on requisition, therefore, the word shall" has been used. The convening of the meeting on the eighth day on the requisition was perhaps conceivably done by taking that the day on which the requisition was received was to be excluded and with that impression the meeting was convened as such within seven days. The delay of one day in our opinion, in the circumstances of the case, does not defeat the intention of the Legislature and set at naught the provision so as to say that the non-compliance thereof per se vitiates the proceedings. The learned counsel was asked to show any prejudice having been caused to the petitioner on that account. He has not been able to show any. It will be treated as an irregularity, 'A though not to be encouraged, not vitiating the proceedings since no pre-juice has been shown as having been caused. At the most it could be said that the convening of the meeting with the delay of one day had its impact upon holding of the meeting late by one day. , The conduct of the petitioner as narrated in the facts shows that the meeting was actually held late on 3-7-1984 due to him.
6. The third contention of the learned counsel is that out of 18 members 15 persons had only been served as to the holding of the meeting, Had all been served they might have convassed in favour of the petitioner. The service was not effected by the Secretary Union Council by affixing the notice on the Notice Board of the Office of the Union Council nor by way of any advertisement or citation in the newspaper or through the beat of drum. When the counsel has been reminded that in order to determine this point an inquiry will have to be made into the questions of fact . Which inquiry cannot be made within the scope of this petition, then the learned counsel has not pursued the point any further.
7. The fourth contention of the learned counsel is that the meeting did not take place in accordance with the provisions of rule 5, therefore, the proceedings are liable to be set aside being in violation of the rule. 6 In support hereof he has submitted that the Project Manager was associated with the proceedings who addressed as to the purpose (--1-:).14...9 ol'a4) of the meeting as stated in the minutes by saying that the meeting had taken place pursuant to the requisition of Rafiq Ahmad and nine others for motion of no-confidence. What the learned counsel means to say is that there is no place for a Project Manager within the contemplation of rule 5. The meeting was presided over by Malik Muhammad Khan E. A. C./Resident Magistrate which is obvious from the notes in the minutes as well as from the statement that after the Project Manager the Presiding Officer enquired from the signatories the reason for putting up the motion-of no- confidence. From the text of the minutes it appears that the Project Manager was associated just as to assist the Presiding Officer who did not abandon his function under the Rules and the Project Manager said nothing beyond the object and purpose of the meeting. The learned counsel has again not been able to show that any prejudice was caused to the petitioner by a short and simple address of the Project Manager, therefore, no importance can be attached to the contention so raised.
8. It'has been further contended that rule 6(2) of the above-said rules stood violated when the Presiding Officer instead of calling upon the members supporting the motion of no-confidence to stand up in their seats, asked them to convey their votes in favour of the motion of no-confidence by raising their hands. This is no doubt a departure from the rule but the departure is of such a nature that in the absence of any prejudice it cannot be taken note of. The proceedings of the meeting as a whole appear to be in substantial compliance of both the rules.
' The learned counsel has lastly submitted that there is an affidavit of Muhammad Aslam fahir one of the councilors which is to the effect that he was present in the meeting ; that he did not raise his hand in favour of the motion of no-confidence against the petitioner and that he was not provided with an opportunity to speak against the motion. No face can be given to this affidavit since it is inconsistent with deponent's actual conduct as recorded in the minutes. There is nothing to show that during the proceedings of the meeting he made any protest.
' The learned counsel has also relied upon Muhammad Saeed v. Election Petitions Tribunal West Pakistan (1), in which it has been held that "if it be held that an election petitions tribunal is either a judicial tribunal or a quasi-judicial tribunal, then, assuming that the other conditions requisite for the issue of a writ are present, the High Court may interfere to correct excesses of jurisdiction by such a tribunal, or a refusal to exercise jurisdiction where such exists, or an error of law apparent on the face of the record, or any material irregularity in the exercise of jurisdiction." The benefit of this decision cannot be given to the petitioner since no case has been made out by the petitioner to attract the principle enunciated in the decision. No other point has been urged. The learned counsel for the respondents has in reply supported the motion of no-confidence as it is. We dismiss this writ petition being without any substance with no order in the circumstances of this case as to costs.
(1) PLD 1957 SC (Pak.) 91