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Writ Petition No. 166 of 1963, decided on 2,7th May 1964.

, r. 4 (4) Provisions do not make it incumbent upon Controlling Authority to supply copies of official notings.

], Arts. 39 (4) & 25 and West Pakistan Local Councils (Resignation and Removal of Members), Rules, 1960, rr. 4 & 6 (2) Provisions of Art. 39 (4), Basic Democracies Order, 1959‑Wide in scope Provisions, however, meant merely to cure defects creeping into proceedings unknowingly, inadvertently or owing to existence of a state of doubt‑Cannot serve as general licence to disregard all other relevant provisions of law or rules‑Special meeting of District Council convened for considering reference made by Controlling Authority for removal from membership‑Meeting presided over by Controlling Authority himself albeit "in good faith with consent of members present and in order to safeguard dignity of the house and to avoid unpleasant happening" Invalid and in violation of provisions of law‑Defect not curable by provisions of Art. 39 (4), Basic Democracies Order, 1959.

Manzur‑ul‑Haq v. Controlling Authority P L D 1963 S C 652 ref.

, r. 6 (7)‑Provision directory and not mandatory but nevertheless not redundant‑Delay of 12 days in supplying copy of resolution to member concerned‑Not sufficient in circumstances of case to vitiate action itself.

‑Directory and mandatory provisions‑Breach‑Effect different‑Directory provisions‑Effect to be determined in circumstances of each case‑Breach does not create invalidating effect though wrongdoer may be exposed to a penalty‑Nevertheless, directory provision not entering unnecessary or optional.

Nooruddin N. Ramzan for Appellant.

Abdul Kadir Shaikh, A. A.‑G. for Respondents 1 and 2.

Respondents 3 to 5 though served remained absent.

Date of hearing : 27th May 1964.

---The petitioner challenges the resolution passed by the District Council, Larkana in consequence of which he has been removed from the membership of the Union Council, Arija, and also challenges the elections of respon dents Nos. 4 and 5 which took place in consequence of his removal.

2. Briefly, the facts are that the petitioner was a member and the Chairman of Arija Union Council, Dokri, District Larkana. A notice under Article 25 (2) (c) of the Basic Democracies Order, 1959, dated the 8th of November, 1961, was issued to him under rule 4 (1) of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, to show cause as to why action for his removal should not be taken against him for the abuse of power and misconduct in the discharge of his duties. He submitted an explanation on the 27th of November 1961. Thereafter, another show cause notice was issued, dated the 15th of September, 1962 and another explanation was sub mitted by the petitioner on, the 22nd of October, 1962. After it a meeting of the District Council, Larkana, was called for the 18th of February 1963, and the agenda of the meeting dated the 6th of February 1963, which is Annexure A' to the petition, was circulated. It was as follows :‑

"To consider letter No. HC/BD/3341 dated 12‑10‑1962, from the Deputy Commissioner, Larkana and orders of the Deputy Commissioner, Larkana dated 15‑10‑62 and 6‑11‑62 regarding disqualification of Messrs (1) Muhammad Hasan, (2) Ghulam Nabi Shah, (3) Nadir Khan Abro, Chairmen of the Union Councils, Buhar Arija and Bahman, respectively, on account of misuse of powers etc."

On the 8th of February 1963, the petitioner applied for copies of "the Deputy Commissioner's letters along with copies of any other papers referred to therein," to enable him to refute the charges which were levelled against him. The copies were not supplied; therefore, on the 12th of February 1963, he sent a reminder. On the 15th of February 1963, he received a copy of the letter dated the 9th of February 1963, to the effect that the application had been forwarded to the Deputy Commissioner, Larkana, for his orders as to whether the copies could be supplied or not. The meeting was thereafter held on the appointed date, i.e. the 18th of February 1963 at which the petitioner appeared.

3. According to paragraphs 14 to 17 of the petition, he requested for the adjournment of the meeting on the ground that the copies required by him were not supplied, but his request was rejected. He, therefore, desired to submit his objections in writing, but they were not accepted. On the contrary, the Collector and Controlling Authority of the Arija Union Council, Larkana was so much annoyed by the conduct of the petitioner that he refused permission to him to be represented by an Advocate, and ordered him to leave the meeting. These facts are denied in the counter‑affidavit submitted by Maj. Ahmed Ali, Assistant Director, Basic Democracies, Larkana, on behalf of respondents Nos. 1 and 2. But it is admitted by him that the meeting was presided over by the Collector and Controlling Authority who was the Chairman of the District Council, Larkana "in good faith with the consent of the members present at the meeting in order to safeguard the dignity of the house and to avoid any unpleasant happening". It is further explained that he neither voted nor interfered with the deliberations of the meeting, and that the reference was freely discussed by the members who were present, with the result that the resolution "disqualifying the petitioner was passed by the majority of 6 to 5, vide resolution No. 3 of the special meeting" Annexure K' to the counter affidavit is a copy of the three resolutions that were passed at the meeting. Resolution No. 3, which relates to the petitioner, was as follows :‑

"Therefore, it was decided that he (the petitioner) may be disqualified from the Chairmanship."

Paragraph 3 of the petition discloses that the notification which was issued subsequently disqualified the petitioner from the membership of the Union Council, Arija and not from its Chair manship only. The contents of this paragraph have not been controverted in the counter‑affidavit; on the contrary, the action is indirectly justified in sub‑paragraph (6) of paragraph 20 of it as follows :‑

"The Special Meeting of the District Council has not exceeded its powers and has recommended that the petitioner may be disqualified as is clear on the face of the resolution. Under rule 6 (8), if according to the resolution passed under sub‑rule (6) of rule 6, the member concerned is liable to be removed, the Controlling Authority shall pass an order accordingly under Article 25 of the Basic Democracies Order, 1959. In the present case too, the Controlling Authority has acted upon the resolution as prescribed by the rules and has notified his dis qualification and ordered for taking over from him the charge of his post of Chairman, Union Council, Arija, Taluka Dokri."

4. Further defenses, which has been raised in the counter affidavit, are that the petitioner could not get the copies which were requested by him "as the matter was based on official notings, copies of which are not to be given according to law. The gist of the notings was already communicated to him (the petitioner) in the shape of show cause notice No 3387, dated 15‑9‑1962". It is contended that "anything done in good faith does not vitiate the proceedings under Article 98 of the Basic Democracies Order, 1959". Moreover, according to the counter‑affidavit, the petitioner has made false allegations in the petition and "has not availed of legal remedies provided under the statute and there fore this petition is liable to be dismissed on this ground alone."

5. The Additional Advocate‑General, who appeared on behalf of respondents Nos. 1 and 2, conceded that no alternative and adequate legal remedy was available to the petitioner. The petition is thus not barred by Article 98 of the Constitution.

Moreover, the facts alleged by the petitioner with regard to the treatment meted out to him in the meeting having been denied in the counter‑affidavit, the only surviving effect was that the allega tions had to b let out of consideration, with the result that neither their truth nor falsehood could be relied upon by the parties in these proceedings. He was right here in the circum stances of this ease. As to the objection of the petitioner based on the failure of respondents Nos. 1 and 2 to supply the copies of documents his counsel did not appear to attach such importance to it probably because the show cause notice was fairly elaborate. Rule 4 (4) of the West Pakistan Local Councils (Resignation an Removal of Members) Rules, 1960, on which reliance was place by him for the supply of the copies, is simply as follows :‑

"The Controlling Authority, while making a reference under clause (b) of sub‑rule (3), shall send a copy of the reference to the member concerned "

This rule did not help counsel with respect to the supply of the copies which were asked for by the petitioner.

6. Counsel for the petitioner, in the above circumstances, pressed the following two objections against the action which has been taken against the petitioner :‑

Firstly.‑the meeting was presided over by respondent No. 1 who was the Controlling Authority; as such the same gentleman who had made the reference against the petitioner, controlled the proceedings. Moreover, he was neither a member of the meeting which was convened under Article 25 (4) (c) of the Basic Democracies Order. 1959, nor could he be its Chairman under rule 6 of the West Pakistan Locai Councils (Reskmation and Removal of Members) Rules, 1960.

Secondly.‑under sub‑rule (7) of rule 6 of those rules, a copy of the resolution passed under sup‑rule t6l had to be forwarded to the petitioner within three days of the passing of the resolution, but this has admittedly not beer done, because according to the counter‑affidavit, the copy of the resolution which was passed on the 18^th of February 1963, was forwarded to the petitioner vide the letter dated the 6th of March 1963. The sub‑rule, according to counsel, is mandatory because of its language as follows :‑

"A copy of the resolution passed under sub‑rule (6) shall, within three days of the passing of the resolution be forwarded to the Controlling Authority and the member concerned."

7. The Additional Advocate‑General tried to meet the first objection by referring to clause (4) of Article, 39 of the Basic Democracies Order, 1959, and by pointing out that the Deputy Commissioner had presided over the meeting merely to maintain order and discipline in it without causing any prejudice because he has neither voted at it nor participated in the dis cussion. The clause on which he relied is as follows :‑

"No proceedings of a local council shall be invalid by reason only of the existence of any vacancy in or any defect in the constitution of the council, or by reason only that some person who was not entitled to do so, sat or voted, or otherwise took part in its proceedings;"

He supplemented this argument by referring to the judgment of the Supreme Court in Manzur‑ul‑Haq v. Controlling Authority (P L D 1963 S C 652), in which their Lordships have held that the presence of a Vice- Chairman who improperly voted at the meeting did not affect the validity of the resolution for the removal of the member concerned because the voting was 8 to 2 and one vote did not make any difference. It was contended before their Lordships that the presence of the Vice‑Chairman had influenced the other members, but they observed that :‑

"this only means that there was an irregularity and the resolution could be set aside on the ground of the irregularity only if it was material."

The onus of proving the materiality of the irregularity was on the person who alleged it, and there was nothing on the record to prove the allegation. In this case, counsel for the petitioner has expressed his grievance against exercise of undue influence with some bitterness and has pointed out that there was an admission in the counter‑affidavit that the reason for the Deputy Commis sioner to preside over the meeting was to safeguard the dignity of the house and to avoid untoward incidents which indicated that there was a strong opposition to the proposed resolution which was intended to be suppressed by the personal chairmanship of the Deputy Commissioner. The opposition, according to counsel, was not fully quelled because the resolution was carried by the majority of one vote only. The copy of the resolution, which is annexure K' to the counter‑affidavit, shows that five members had voted for the reference of the resolution to a Sub -Committee as in the case of another Chairman. We are prepared to give allowance to the difficulty that must be experienced in all such cases by the aggrieved persons in proving the influence of the personal presence of a powerful officer. The fact that the resolution was passed by the majority of one vote, combined with the fact that the reason given in the counter‑affidavit for the Deputy Commissioner to preside over the meeting indicates the existence of unusually strong sentiments, leads us to the inference that the Deputy Commissioner's presence as the Chair man of the meeting must have influenced the members irrespective of whether he participated in the discussion or voted at the meeting or not. Here we may add that the resolution was to disqualify the petitioner from the Chairmanship of the Union Council, but, as noted above, he was removed from the member ship when the notification was issued subsequently. The Additional Advocate‑General argued that the petitioner was not the only man whose case was ‑under consideration in the meeting. There were two others and the meeting was in their favour. That is so, but the context was with respect to the petitioner; therefore, the effect of personal influence counts in his case. The apprehension of disorderliness and undignified conduct of the meeting which existed could not have been aroused with respect to the other two cases which were resolved unanimously. Our view is that in this case there is material on the record to indicate that unauthorized influence has played a part in the case of the petitioner. It is immaterial whether there was good faith in it or not because Article 98 of the Order is irrelevant to this case.

8. The Deputy Commissioner was not only a stranger to the meeting but was also entirely unqualified to take the chair. Sub rule (2) of rule 6 of the above‑mentioned rules runs as follows :‑

"The aforesaid members, present at the special meeting, before the transaction of business, shall elect one of them as the Chairman for the special meeting."

The words "shall elect one of them" in the above sub‑rule are to be noted. A suggestion was made that the emphasis is on the time of the election, and not on the class of the people from whom the Chairman may be elected. In this view there was no breach of the provision because, according to the counter‑affidavit, the Deputy Commissioner took the chair with the consent of the members though without a formal election. We do not agree with the suggestion. Moreover, the consent in this case does not convince us, because no dissent or assent was noted and the minutes indicate that the chair was occupied as if by right. Election of the Chairman was necessary, and the failure to do so strikes to us to be a defect in the constitution of the meeting. Such a defect is much more serious than the inadvertent presence and ineffective vote of a stranger at a meeting. The learned Additional Advocate‑General was aware of this aspect of the matter and has, therefore, relied on clause (4) of Article 39 of the Basic Democracies Order, 1959, which has been reproduced above.

9. In terms of the above clause, no proceeding of a local council is to be considered as invalid by reason only of the existence of any defect in the constitution of the council or by reason only that some person who was not entitled to do so sat or voted at the meeting or otherwise took part in its proceedings. The provision is wide in its scope and can be used for removing multifarious defects; but the point is : whether this provision is meant to override all other relevant provisions by serving as a general permission to deliberately disregard the rest of the Order and the rules or is an exception meant merely to cure the defect which may creep into the proceedings unknowingly, inadvertent or owing to the existence of a state of doubt. Such provisions are to be found in most of other sets of provisions that relate to the meetings of various bodies, but they are not meant to override any positive provisions contained in the rest of a statute or set of rules. If it was not so, then important parts of statutes, statutory rules, or other relevant provisions relating to meetings could be set at naught by deliberately creating defects in the proceedings or in the constitution of meetings leading to the result that no other relevant provision of law or any rules would remain effective except such an exception. The very fact that there are other provisions in the Order and the rules which clearly and positively lay down as to who can attend as a member and who can preside, is sufficient to lead to the conclusion that the above‑mentioned provisions is intended only to cure unknow ingly, inadvertently or dubiously created defects. In this case, the Deputy Commissioner deliberately infringed the provision of the election of the Chairman and took the chair inconsistently with the legal concept of the constitution of that meeting. His only excuse) is that he did so in good faith for maintaining the dignity and orderliness of the house. His presence in all meetings in which a resolution in terms of rule 6 of the said rules may be passed is likely to impart dignity to them and to contribute to their smooth working; but if such dignity and orderliness were made the working basis, then the sub‑rule would be nullified. The situation would have been different if the plea was successfully taken that the law was not clear or there was genuine and excusable inadvertence; but no such plea has been raised. If the law was intentionally broken with a good, intention, then the intention may be laudable, yet the breach may entail most of its normal consequences. Good faith is thus not always a good excuse.

10. Our conclusion, therefore, is that the meeting suffered from a constitutional defect which was created deliberately in violation of the provisions of law.

11. Turning now to the second objection of counsel for the petitioner that copy of the resolution was not forwarded to the petitioner within three days, although sub‑rule (7) of rule 6 of the said rules lays down that it shall be so forwarded, we may observe that the learned Additional Advocate‑General met it by contending that no harm could come nor has come to the petitioner by virtue of the omission. The counter‑affidavit indicates that this provision was violated "as usual". We do not approve of this latter attitude towards positive provisions of the law even if they be inconvenient. The provision is directory and not mandatory, which does not mean that it is redundant o useless. On the contrary, as pointed out by Maxwell, it is meant to be obeyed substantially. As substantial observance is t: the main consideration; it is not correct to say that in no case it breach can create an invalidating effect on the action taken in breach of it. Ballantine's Law Dictionary contains the observa tions on the basis of American authorities, that the difference between the invalidating effect of the breach of mandatory and directory provisions is that the latter is to be determined by the Courts having regard to the circumstances of each case. To treat a directory provision as entirely unnecessary or simply optional would amount to interference with legislative powers. Even when the breach of a directory provision does not create an invalidating effect, the wrongdoer may be exposed to a penalty for his negligence. Black's Law Dictionary has emphasised this aspect as follows:‑

"The general rule is that the prescriptions of a statute relating to the performance of a public duty are so far directory that, though neglect of them may be punishable, yet it does not affect the validity of the acts done under them, as in the case of State requiring an officer to prepare and deliver a document to another officer on or before a certain day."

In this case we are inclined to agree with the learned Additional Advocate‑General that the significance of the omission is not more than the harmless breach of a clear but directory provision. Counsel for the petitioner argued that it is a healthy provision and is intended to minimize the duration of the time which may be required for the aggrieved party to seek redress : the quicker he seeks redress the shorter will be the span of time in which uncertainties may prevail or a wrong action may remain in operation. That may be so, but the harmless delay 'of about 121 days time in communicating the resolution does not appear to U51 in this case as sufficient to vitiate the action itself.

12. The overall conclusion is that the meeting in which the resolution was passed is invalid owing to its defective constitution and deliberate infringement of positive provisions of law. The consequence of this finding is that the resolution be held to have been passed without lawful authority and to be of no legal effect. The result which flows from the latter decision is that the election of respondent No. 4 as a member of Arija Union Council, Dokri in the place of the petitioner, and the election o respondent No. 5 as the Chairman of the Council, in the place of the petitioner do not stand in the way of the petitioner for occupying his seat as a member and the Chairman of that Council.

13. The petition is accepted accordingly.

K. H. A. Petition accepted

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