' MUHAMMAD BASHIR KHAN JEHANGIRI, J---Facts necessary for the disposal of this Constitutional Petition, briefly stated, are that Town Committee, Karak, comprised of ten members including the three petitioners. On 31-1-1991, a written notice signed by eight members including the petitioners herein called upon Shamsul Wahab, Chairman of the Municipal Committee to convene a special meeting of the Town Committee under sub-rule (1) of Rule 3 of the N.-W.F.P. Local Councils Chairmen and Vice-Chairmen (Vote of No-Confidence) Rules, 1980 (to be hereinafter called as the Rules) to consider a motion of No confidence against him. This notice was received by the Head Clerk of the Municipal Committee on the same day. Since the Chairman of the Municipal Committee did not call the special meeting within the prescribed period of seven days of such requisition, the said eight members put in an application to the Divisional Director, Local Government and Rural Development Department, Kohat Division (Repondent No,2) under Rule 4(1) of the Rules for convening a meeting of No-Confidence Motion'. On 7-2-1991, Respondent No,2 called the special meeting in the office of the Chairman, Municipal Committee on 17-2-1991 at 10.00 A.M. To consider and discuss 'No-Confidence Motion' against the Chairman. Muhammad Farooq, Vice-Chairman, Municipal Committee was also directed to preside over the special meeting in pursuance of Rule 4(1) of the Rules. Copy of this directive was furnished, inter alia, to Respondent No,1, Muhammad Farooq, Vice-Chairman and Malik Shamsul Wahab, Chairman of the Municipal Committee. On 11th/12th of February, 1991 a letter was, however, issued on behalf of Respondent No,1 under the signatures of Administrative Officer-III of the Government of N.-W.F.P., Local Government, Elections and Rural Development Department, addressed to Respondent No,2 directing him to postpone the meeting aforesaid for consideration of No-Confidence Motion' against the Chairman.
In consequence respondent No,2 postponed the meeting. The petitioners, feeling aggrieved, have through this Constitutional Petition impugned the direction contained in the letter dated 11th/12th February, 1991 issued by respondent No, 1 to respondent No, 2 to be without lawful authority and of no legal effect with a further direction to Respondent No,2 "to perform his duties in accordance with law as prescribed by the Rules and to convene the meeting for consideration of 'No-Confidence Motion' against the Chairman."
2. The petition was admitted to regular hearing and notices were issued to the Respondents.
Respondents Nos. 1 and 2 accordingly submitted their comments. The sum and substance of the comments was that since there was a report against the two Councillors, namely, Gul Sharif and Bibi Maina that they had incurred a disqualification on account of having remained absent without reasonable cause from three consecutive meetings of the Local Council and that these two Councillors were also signatories to the 'No-Confidence Motion', therefore, it was decided to first dispose of the disciplinary cases against them and in consequence, the meeting was temporarily postponed.
3. Qazi Muhammad Anwar, learned counsel for the petitioners, in support of the petition, contended that respondent No,1 was not competent in law to direct respondent No,2 to postpone the meeting for consideration of 'No-Confidence Motion' against the Chairman.
4. The learned Advocate-General invoked the provisions of section 34 of the N.-W.F.P. Local Government Ordinance, 1979 (to be hereinafter called as the Ordinance) and maintained that Respondent No,1 has ample power to remove a Chairman or a Vice-Chairman or a member of a Local Council from office in the prescribed manner, inter alia, if he absents himself without reasonable cause from three consecutive meetings of the Local Council. The learned Advocate- General thus submits that since there was a complaint against the two members who were signatories to the 'Motion of No-Confidence' against the Chairman, therefore, the postponement of the meeting was imminent which could not be called in question. It was also contended by the learned Advocate-General that Respondent No,1 was competent under section 20 of the West Pakistan General Clauses Act, 1956 (W.P. Act VI of 1956) to issue such a direction, in that, since there was power with Respondent No,1 to convene the meeting to consider the `Motion of No-Confidence' against the Chairman, there was also a power to add to, amend, vary or rescind, any notifications, orders, rules, scheme, from and bylaws so issued.
5. There is no cavil with the proposition that in exercise of powers under section 34 of the Ordinance the Govt. After giving him an opportunity of being heard, may remove a Chairman, Vice-Chairman or a member of a Local Council on one or more of the grounds enumerated therein. One of such of grounds is his absence without reasonable cause from three consecutive meeting of the Local Council. In this context, the question, arises as to whether pending decision of proceedings of removal within the contemplation of section 34 ibid, the Chairman, Vice-Chairman or a member, as the case may be, stands disqualified to participate in the conduct of the business of Local Council. We have not been able to find any such disqualification in the Ordinance or the Rules framed thereunder. In this view of the matter, the two members complained against probably by the Chairman have not incurred any such disqualification so as to participate in the 'Motion of No- Confidence' against the Chairman. Again, Respondents have not disclosed in their comments as to when the complaint of absence against the two members for their absence under clause (e) of subsection (1) of section 34 of the Ordinance was made. The parties are at variance on the date of such complaint. The learned counsel for the petitioners maintained that it was made after the 31st of January, 1991 when written notice under rule 3(1) of the Rules calling upon the Chairman to convene a special meeting of the Municipal Committee was served upon him. As against this, the learned Advocate-General submitted that the complaint was made on the 24th of January, 1991. Be that as it may, the crucial point falling for consideration is as to whether Respondent No,1 was competent under the Ordinance or the Rules framed thereunder to postpone the meeting to discuss and consider the 'No-Confidence Motion' against the Chairman on the ground of a complaint about the absence of two members who are signatories thereto.
6. We have given our anxious consideration to the proposition and have concluded that so long as a requisition complied with the provisions of rules 3 and 4 of the Rules, there is nothing against convening such a meeting subject of course to the provisions of section 36 of the Ordinance, with which we are not concerned at the moment. Now if the Government is held to have got a prerogative to postpone such a meeting, it will be tantamount to frustrating the very object of the Ordinance. By resorting to such machinations the Chairman or the Vice-Chairman, who had lost confidence of the members of the Local Council, may perpetuate his office. Obviously this cannot be accepted as the object of the Ordinance. On the other hand, action of Respondent No,2 to postpone the meeting upon direction of Respondent No, 1 is certainly in violation of the Rules.
7. Then rule 2 reads that not less than half of the members of Local Council may by written requisition call upon the Chairman to convene special meeting. Even if two members were complained against for allegedly absenting themselves from the three consecutive meetings, still there were two other signatories to the requisition which was more than half of members of the Municipal Committee. If complaints of this nature are entertained it will sidetrack the very object of the Rules to oust the Chairman by virtue of their legal right to move and pass the 'Motion of No- Confidence' against him. The law on the subject, on the one hand, has sufficiently protected the office of Chairman under section 36 of the Ordinance and rules 3, 4 and 5 of the Rules from the onslaughts of the irresponsible moves on the part of the members while, on the other hand, the law has given free hand to the members to move the 'No-Confidence Motion' under rule 6 of the Rules requiring not less than two-third majority of the total members constituting the Local Council. If the two-thirds majority of the total members of the Local Council lose confidence in the elected Chairman and the law gives the members choice to oust him then he is expected to step down in an honourable way and should not cling to the office illegally. Likewise, Government which has been inducted into power will be well advised to discourage such undemocratic moves to frustrate the very spirit of law and strengthen the budding democratic institutions like the Local Councils.
The democratic Government in their own interest are expected to desist from supporting Chairman who has lost the confidence of two-thirds majority of the total number of the members of a Local Council whereby they would render real service to these institutions.
8. The rule of locus poenitentiae; pressed into service by the learned Advocate-General, we are afraid, is not attracted to the case in hand. The impunged order of 'temporary postponement' of meeting to consider the 'No-Confidence Motion' against the Chairman had not been preceded by or originated from any order of the Provincial Government so as to fall within the ambit of section 20 of the West Pakistan General Clauses Act, 1956 (W.PAct VI of 1956). That clearly is a legislative function which is wholly outside the authority conferred by section 36 of the Ordinance or the Rules.
The order of Respondent No,2 to convene the meeting under rule 3(2) of the Rules is, therefore, not one of those orders which he could validly withdraw upon the direction of Respondent No,1 under the purported exercise of section 20 of the West Pakistan General Clauses Act, 1956. Even if it is conceded that under section 20 ibid power vested in the Respondent, still that power did not include the power what has been described as 'temporary suspension'. The second contention of the learned counsel thus stands repelled.
9. Before parting with the case we would dispose of an application moved by Shamsul Wahab petitioner for his impleadment as a party to this petition. In the facts and circumstances of the case, we are of the considered view that he is neither a necessary nor a proper party to these proceedings. C;Misc. No, 1133 of 1991 filed by Shamsul Wahab petitioner is accordingly dismissed.
10. The result of the above discussion is that we allow this petition, set aside the impugned order of Respondent No,2 dated 13th February, 1991, postponing the meeting in pursuance of the direction of Respondent No,1 contained in the letter dated 11th/12th February, 1991 and hold both the orders to be without lawful authority and of no legal effect. We further direct Respondent No, 2 to reconvene the meeting in pursuance of his order dated 7th February, 1991, within a fortnight. No order as to costs.