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Writ Petition No. 483 of 1956, decided on 16^th October 1956, under Article 170 of the Constitution of the Islamic Republic of Pakistan.

, [as amended by the Punjab Municipal Act (West Pakistan Amendment) Ordi nance, 1956], Ss. 13 (2) (6) and 238‑Municipal Election Rules, 1952, Rule 4‑Subsection (6) of S. 13 comes into play only when terms of office of all members expire‑Three years of term of office begin from date of taking oath.

Where term of office of three members of a Municipal Committee had not yet expired, nor had a new Committee come into existence as contemplated by rule 4 of the Municipal Election Rules, 1952.

Held, that subsection (6) of section 13, Punjab Municipal Act, as inserted by the Punjab Municipal Act (West Pakistan Amendment) Ordinance, 1956, could not come into play so as to bring about consequences to which a superseded Committee is liable under subsections (2) and (3) of section 238 of the Act.

The Provincial Government, instead of dealing with such a Committee under subsection (6) of section 13, should have superseded it under subsection (1) of section 238 of the Act, for obviously, three persons could not function as the Committee.

Held further, that the words "taking his seat" occurring in Rule 4, Municipal Election Rules, 1952 are equivalent to taking the oath of membership. The period of three years of the term as member therefore begins with the date of taking the oath.

Riasat Ali Khan for Petitioner.

Nemo for Respondents (1) and (2).

Secretary (Respondent No. 3), Municipal Committee, Hafizabad in person.

The Municipal Committee, Hafizabad, consists of twenty‑three members, each representing a ward of that town. Elections were held in respect of this Municipal Committee in the end of 1952 and the beginning of 1953. In January 1953, Muhammad Sharif, Ali Muhammad and Hafiz Ibrahim were left unopposed in three wards, and, therefore, under rule 14 (3) of the Punjab Municipal Rules they were deemed to have been automatically elected to the Committee. However, the Provincial Government changed the programme of election during its pendency, with the result that polling actually took place in April 1953 and a declaration was made by the Government that the previous proceedings in the election held in January 1953, were invalid. This led the three above‑named persons to file a civil suit and they eventually succeeded in obtaining a declaration that they were duly elected members of the Committee. The decision of the original Court was upheld right up to this Court in second Appeal. The decision of this Court is‑‑Muhammad Ismail etc. v. Muhammad Sharif (1), and is dated the 12th of January 1955. In pursuance of this final adjudication, the Government issued Notification No. A/II/30‑IV/31 dated the 3rd of September 1954, declaring under section 24 of the Punjab Municipal Act, 1911, (hereinafter referred to as the Act) that the three above‑named persons had been elected members of the Hafizabad Municipal Committee. These three gentlemen, therefore, took the oath of allegiance as required by section 24 of the Act on the 19th of October 1954. On the 20th of September 1956, the Provincial Government issued Notification No. 7170‑B&C‑56 purporting to act under subsection (6) of section 13 of the Act, as amended by the Punjab Municipal Act (West Pakistan Amendment) Ordinance 1956, to the effect that the Com mittee should be regarded as having been superseded, within the meaning of section 238 of the Act. Malik Muhammad Afzal, who had become a member of this Committee in the vacancy caused by the removal of another member, M. Fazal Husain, took the oath as member on the 21st of July 1953. He subsequently got himself elected as President of the Committee. After the above notification, hearing on the supersession of the Committee, Malik Muhammad Afzal approached this Court with a petition for an appropriate writ or other order or direction in order of restrain the Provincial Government, the Deputy Commissioner, Gujranwala, and the Secretary Municipal Committee, Hafizabad, from imple menting orders conveyed in a telegram from the Government declaring the Committee to be superseded and asking the Secretary to take over from the President. Notice was issued of this petition to the three respondents, but only the Secretary of the Municipal Committee has put in appearance, although, all the respondents were duly served.

The main contention raised by Mr. Riasat Ali Khan on behalf of the petitioner is that subsection (6) of section 13 c) of the Act, which was inserted therein by the West Pakistan Ordinance XV of 1956, was not attracted to the facts of this case. This subsection reads as follows :‑

(6) "When the term of office of all the members of a committee expires and it is not extended under sub section (3), the provisions of subsections (2) and (3) of section 238 shall apply as if the committee were superseded under section 238".

It is pointed out that the three members, Muhammad Sharif, Ali Muhammad and Hafiz Ibrahim, who took their oath of allegiance in October 1954, still continue to be members of the Committee so that, in terms, subsection (6) of section 13 of the Act does not cover the case. The term of office of members of a committee other than those appointed ex‑officio under subsection (1) of section 13 of the Act, is regulated by subsections (2) and (3) of section 13, as amended by Ordinance XV of 1956. These two provisions are in the following terms :‑

(2) "The term of office for which all other members of committee shall be appointed and elected, respectively, shall be fixed by the Provincial Government by rules made under this Act, and may be so fixed as to provide for the retirement of members by rotation, but shall not exceed three years."

(3) "A member shall, on the expiry of the term of office under subsection (2), cease to hold office

Provided that the Provincial Government may, for reasons to be recorded, by notification in the Official Gazette, extend the term of office of a member for a period not exceeding six months

Provided further that in the case of a member, whose term of office expired before the coming into force of the Punjab Municipal Act (West Pakistan Amendment) Ordinance, 1956, the Provincial Government may, for reasons to be recorded, by notification in the Official Gazette, extend it for a period not exceeding six months, from the date of coming into force of the said Ordinance and, unless so ‑extended, such member shall cease to hold office immediately on the expiry of a period of 30 days from the said date."

It is not denied that the Provincial Government has passed no orders extending the term of any member of this Committee under the new subsection (3) of section 13. Normally; therefore, if a member's term has expired under subsection (2), he should be deemed to have ceased to hold office. Subsection (2), however, refers to rules. Rule 4 of the Municipal Election Rules, 1952, is relevant in this con nection. This runs as under :‑

"Subject to the provisions of the Act, the term of office of a member of a committee shall be three years from the date of taking his seat or until the date of the meeting appointed under the provisions of rule 5 for the adminis tration of the oath of allegiance to members of a newly constituted committee, whichever period is less."

The expression "taking his seat" occurring in this rule is equated by the learned counsel for the petitioner with "entering upon his duties and taking the oath of allegiance" as provided for in section 24 of the Act:' 'This section prescribes that every election arid appointment of a member or president of a committee shall be notified by the proper authority and no member shall enter upon his duties until his election or appointment has been so notified and until he has taken the requisite oath. The starting point for the period of three years under rule 4, it is contended, should therefore, be the date on which a member takes the bath of allegiance after the notification of his election has been made in the case of Muhammad Sharif, Ali Muhammad and Hafiz Ibrahim, it is argued, their term of office has not yet expired, they having taken the necessary oath on the 19th of October 1954, and the new committee not yet having come into being. This position appears to be sound, and, consequently, it must be held that the impugned notification dated the 20th of September 1956 issued by the Provincial Government was misconceived. It is obvious that the term of office of these three members has not expired, and, consequently, subsection (6) A of section 13 of the Act, as inserted by the Ordinance, has not come into play.

This, however, does not mean that the plaintiff is entitled to any relief by way of a writ or direction. As has been observed above, the petitioner stepped into the shoes of another member, Malik Muhammad Afzal, who, it is conceded, took the oath of allegiance on the 21st of July 1‑53. By virtue of subsection (3) of section 13 of the Act, the petitioner could only continue, for the rest of the period for which Malik Muhammad Afzal could have held the; office of member. The maximum period during which that member ship could enure was, under subsection (2) of section 13 of the Act, three years and since Malik Muhammad Afzal took the oath on the 21st of July 1953, these three years expired in July last. Not only therefore has the petitioner ceased to be the President of the Committee, but he, is no longer a member even. He has no status in the Committee whatever, and, consequently he is not entitled to any relief, in the alleged right of membership or President ship of the Committee.

The position is really, therefore, anomalous. The result is that only three members out of twenty‑three have been left in the committee, but they could obviously not function as the committee. Under the bye‑laws of the Committee the quorum for an ordinary meeting, is one‑third of the total number of members. These three persons would not there fore, be able to function as the Committee. Instead of resorting to the provisions of subsection (6) of section 13 of the Act, the Provincial Government could have very well pressed into service subsection (1) of section 238 of the Act, for superseding the committee which had become incompetent to perform its functions. It is, therefore, idle for the petitioner to contend that the committee should be allowed to continue its normal activities till the next election. We understand that the elections are already afoot and polling may be held within the neat month.

The petition fails and is hereby dismissed, but, under the circumstances of the case, we make no order as to costs.

A. H. Petition dismissed.

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