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Writ Petition No. 1196 of 1964, decided on 1st October 1964.

rr. 7(2) & 5(5)‑Person declared successful under r. 5(5)‑Clothed, immediately on election, with powers of Chairman‑Notification in official Gazette not condition precedent Rule 7, does not confer power on Controlling Authority to make interim order withholding publication of name of Chairman and/or prevent him from functioning as Chairman.

, Arts. 12 (5) & 75 and West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, r. 5(5)‑Chairman elected by Union Committee‑Neither Basic Democracies Order, 1959 nor Rules made thereunder confer any power on Controlling Authority to suspend Chairman from functioning.

Arts. 75 & 12 (5)‑Article 75 does not confer powers on Controlling Authority to fill vacancy of Chairman‑West Pakistan Basic Democracies (Election of Chairman) Rules, r 5 (5).

M. Shaukat Ali for Petitioner.

Javaid Iqbal and Ch. Muhammad Hussain for Respondent No. 2.

Date of hearing: 1st October 1964.

---On the 2h of July 1964, Abdul Ghafur petitioner was elected as Chairman of Union Committee, Ward No. 1. Shadara Town,. Lahore. On the 25th of July 1964, Matlub‑ur‑Rahman, a contesting candidate at the election, presented an election petition before the Controlling Authority, praying that the publication of the name of the petitioner as Chairman be suspended till the final disposal of the petition. Mr. M. A. Nasir, acting as Collector, issued notice to the respondent and directed at the same time that the publication of the name of the petitioner be withheld until the Ist of August 1964. The matter was not heard on the 1st of August 1904. On the 4th o1 August, Abdul Ghafur petitioner filed an application before the Collector for vacation bf the stay order. Mr. Hasan Zaheer, the Controlling Authority, dismissed the application, refusing to vacate the stay order with the result that the publication of the notification of the name of the petitioner as Chairman remained in abeyance. In consequence the petitioner was not allowed to function as Chairman. Abdul Ghafoor challenges the vires of this order by this writ petition.

2. Article 12 (5) of the Basic Democracies Order, 1959, so far as relevant, provides that a Union Committee (or a group of Union Committees, etc., etc.) shall, in the prescribed manner, elect one of its members to be its Chairman, and the Chairman 'so elected shall ex officio be a member of the Thana or Tehsil Council or Municipal body, as the case may be, within whose jurisdiction the Union Committee lies. A Chairman shall be elected under rule 3 (c) of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, at the first meeting of the Basic Democracy, after the notification of the names of the members of the Basic Democracy. The manner of election of the Chairman is provided in rule 4. Under rule 5 (5) the candidate obtaining the highest number of votes shall be declared by the Presiding Officer to have been elected as the Chairman. If there occurs a casual vacancy in the office of the Chairman, rule 8 provides that election to fill the vacancy shall be held' in the manner provided by the rules. Rule 7 provides for election petitions to challenge the election of a Chairman. This rule enacts:‑

"(1) No election of a Chairman shall be called in question except by a petition presented to the Controlling Authority within thirty days of the declaration of the result.

(2) The Controlling Authority may, after such enquiry as may be necessary, uphold the election of the Chairman, or declare the election as void for any material irregularity,' or any sufficient reason to be recorded.

(3) Where an election is held to be void, a fresh election shall be held in the man her provided by these rules."

3. No power is conferred on a Controlling Authority under rule 7 to make an interim order withholding the publication of the name of the Chairman to prevent him from functioning as a Chairman. As mentioned already, there must be a Chairman of a Union Committee according to Article 12(5) of the Basic Democracies Order, 1959. The order suspending the notification of his name was made to prevent an elected Chairman to function, which is not permitted by the Basic Democracies Order, 1959, or the rules made thereunder. To meet this difficulty, the Collector as the Controlling Authority directed the Assistant Director of the Basic Democracies to appoint a suitable non‑party man, under Article 75 of the Basic Democracies Order, 1959, to carry on the business of the Union Committee until a permanent arrangement was made. Article 75 of the Basic Democracies Order, 1959 provides that the Controlling Authority might direct any local council, or any person or authority responsible thereto,, to take, within such period as may be specified, such action as may tie necessary for carrying out the purposes of this Order. This Article is not intended to confer powers on the Collector to fill vacancies of Chairman. It is clear from Regulation No. 6 of West Pakistan Union Committees (Conduct of Meetings) Model Regulations, 1961, that in the case of absence of Chairman at a meeting, the members present shall choose, by majority vote, any one of them to be the Chairman for the meeting. In case of a casual vacancy, rule 8 of the West Pakistan Basic Demo cracies (Election of Chairman) Rules, 1960, enjoins election of the Chairman to be held as provided in the rules. There can be no imposition of a Chairman by the Collector or the. Assistant Director, Basic Democracies. Thus neither the Basic Democracies) Order nor the rules made thereunder confer any power on the Controlling Authority to suspend the functioning of a Chairman elected by a Union Committee. Under rule 5(5), a Chairman, who obtains the highest number of votes, shall be declared to have been elected, and the consequence of the notification of his name as having been elected as Chairman should follow. The Controlling Authority has been given the power under sub‑rule (2) of rule, 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960; to uphold the election of the Chairman or to declare the election as void for any material irregularity or for any sufficient reason to be recorded. No such power, as was assumed by the Controlling Authority in this case, was conferred on it by rule 7. The power of suspending the publication of the notification and preventing an elected Chairman from functioning does not exist in the Controlling Authority.

4. It should, not be assumed that the notification of the name of a Chairman in the official Gazette is a necessary condition for his functioning as a Chairman. As soon as his election takes place and he is declared successful under rule 5(5) of the Rules, he becomes a Chairman of the Town Committee, clothed with the powers of a Chairman. Therefore, even though his name may not have been notified, the petitioner could not have been prevented from functioning as a Chairman, and the appointment of a substitute to act in his place under Article 75 of the Basic Democracies Order was wholly misconceived.

5. For the reasons given above, we set aside the orders of the Controlling Authority, dated 25th of July 1964 and 24th August 1964, And accept this writ petition with costs.

K. B. A.

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