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Constitutional Petition No. 75 of 1986, decided on 27th July, 1986.
‑‑‑S. 3(4)‑‑Business of Local Council‑‑Transaction of‑‑Only elected Chairman, held, was empowered to transact business of Local Council.
‑‑‑Regln. 3(2)(b)‑‑Baluchistan Local Council (Vote of No‑Confidence Against Chairman) Rules 1981, R.3 (1) (b)‑‑No‑Confidence motion‑ Regulation 1980 general in nature while 1881 Rules, special in nature and later in time‑‑Exclusion of general law in favour of special law discussed.‑‑[Interpretation of statutes].
Baluchistan Local Council (Conduct of Business) Regulation, 1980 indicates that for purpose of dealing with no‑confidence motions, law contemplated framing of rules. Evidently to give effect to said provisions of law Baluchistan Local Council (No‑Confidence Against the Chairman) Rules, 1981 were promulgated on 13‑3‑1981. Consequently '1981 Rules' exclusively deal with procedure concerning 'special meeting' for considering 'No‑Confidence Motion'.
Undoubtdly Legislature intended to introduce specific rules for dealing with 'No‑Confidence Motion'. Therefore, intention of legislation is very well‑exhibited by subsequent promulgation of '1981 Rules' which are in line with requirement laid down in para. 3(2) of 'The Regulations'. Additionally '1981 Rules' are later in time, and have been specifically framed to regulate special meetings for prescribed purpose. Therefore, same would obviously hold the field and exclude principle of general law.
Procedure for conducting 'Special Meeting' contained in 'The Regulation' will not apply in respect of meeting to be convened for purposes of considering 'No‑Confidence Motion' and in this behalf '1981 Rules' will exclusively be applicable.
Babu Khan v. The Crown 1970 S C M R 107; The Punjab Province v . L . Sita Ram and others P L D 1956 FC 157; Mehrban Khan v . Fayyaz Begum and another P L D 1984 Lah. 202; Syed Abdul A'la Maudoodi and others v. Government of West Pakistan P L D 1964 SC 673; Tahira Haq v. A.H. Khan Niazi, Additional Commissioner (Revenue Multan) P L D 1968 Lah. 344; Maj Mehtab Khan v. The Rehabilitation Authority and others P L D 1973 SC 451; A. Javaid, President, Pakistan International Airlines Corporation Employees Union, Karachi v. National Industrial Relations Commission, Government of Pakistan, Islamabad and others P L D 1978 Kar. 64; Malik Mir Hassan and others v. The State P L D 1969 Lah. 786 and M. Hassan and others v. Executive Engineer (Civil), Karachi Development Authority and others 1983 C L C 2681 ref.
Special law‑‑Rule of construction‑‑While interpreting a statute, construction relating to inherent powers incidental or ancilliary to main object, held, could not be assumed where specific rules have been framed for prescribed purpose‑‑Where 'special law' provided specified procedure, it would be obligatory to abide by prescribed rules‑‑Power could be exercised within framework of law and not in violation thereof.
(d) Baluchistan Local Council (Vote d No‑Confidence Against Chairman) Rules, 1981‑‑
‑‑‑S. 3(3)‑‑No‑confidence motion‑‑Requisite number of voters‑‑Held, unless two‑third of total number of voters participated in meeting to considering 'no‑confidence motion', against chairman,, no such meeting, could be held.
(e) Baluchistan local Council (Vote at No‑Confidence Against Chairman) Rules, 1981‑‑
‑‑‑‑S. 3(2)(5)‑‑No‑confidence motion‑‑Adjournment, suspension or postponement of meeting‑‑Reconvening of meeting‑‑Procedure‑‑Though there was no specific provision for adjournment, suspension or postponement of meeting in Rules, yet R.3(2)(a) thereof would indicate that if for any reason, meeting was not held on appointed day or was not validly convened, local council could call upon Authority for requisitioning such meeting.
‑‑‑S. 31‑‑No‑confidence motion against Chairman‑‑Failure of‑‑Prohibition for moving fresh motion‑‑Applicability‑‑Prohibition for moving fresh motion against Chairman, held, would be operative only when earlier motion of no‑confidence was Moved and requisite majority of votes was not secured by movers thereof‑‑Prohibition of moving fresh motion for a specified time would safeguard possibility of recurring frivolous motions inienaed at harassment of Chairman which could lead to manoeuvring, tending to adversely affect work of local council.
‑‑S. 31‑‑Baluchistan Local Council (Vote of No‑Confidence Against Chairman) Rules, 1981, Rr. 3(1)(b) t 3(2)(a)‑‑No‑confidence motion‑ Adjournment of meeting, competency of‑‑Authority was not empowered to adjourn meeting called for no‑confidence motion against Chairman of Local Council‑‑Order of postponement of meeting by such Authority on his own motion would be unlawful‑‑Local Council, however, could always requisition fresh meeting for purpose of no‑confidence motion till motion was put to vote‑‑Section 31 of Baluchistan Local Government Ordinance, 1980 would not operate as bar.
‑‑Art. 199‑‑Baluchistan Local Council (Vote of No‑Confidence Against Chairman) Rules, 1981, R. 3(1)(b)‑‑Constitutional jurisdiction, exercise of‑‑Meeting against Chairman of Local Council for non‑confidence being attended by less than requisite 2/3rd members of Council adjourned by Authority‑‑High Court, declared such postponement /adjournment of meeting to be unlawful‑‑Local Council, however, could requisition meeting for no‑confidence motion till such motion was put to vote‑‑Constitutional petition was disposed of accordingly.
Iftikhar Muhammad for Appellant.
Yakoob K. Yousufzai, A.‑G. for Respondent No. 1:
Tahir Muhammad Khan for Respondents Nos. 2 to 9.
Date of hearing: 20th July, 1986.
Brief background and facts leading to the present petition are, that District Council Quetta consists of 13 members including a Chairman. At present the petitioner is elected Chairman of District Council (hereinafter called "The Council"). On 17‑6‑1986 nine (9) Members of "The Council" made a written requisition addressed to the Secretary, District Council, Quetta for convening a 'special meeting' for considering No‑Confidence motion against petitioner. As a consequence thereof, 'special meeting' was requisitioned as per Rule 3, sub‑rule (1) clause (B) of Baluchistan Local Council (Vote of No‑Confidence Against the Chairman) Rules, 1981 (hereinafter called "1981 Rules"). Accordingly notices were issued for attendance of all the Members as well as the Chairman of "The Council" on 29‑6‑1986. It may be seen that eight members came in the District Council Hall at the stipulated date and time, when respondent No. 1 was present. Some of the Members however, raised serious objections, as regards manner of service of notice whereas remaining five including petitioner reportedly did not participate. In this peculiar situation respondent No. 1 in the capacity as Presiding Officer observed that service of notice was defective besides quorum of the meeting was not complete, therefore he ordered the postponement of the meeting to 10th of July, 1986. Relevant observations are reproduced for ready reference:‑‑
"These eight members remained present from 10‑00 a.m. to 11‑00 a.m. During this time there were allegations and counter- allegations one against the other by the contending parties. The mover of the No‑Confidence Motion alleged that the service of the notices happened to be defective in so far as some members had not been served personally. They further alleged that a few members being illiterate could not read newspapers, while others, being on tour of far‑flung area, were not expected to get their newspapers in time/daily. The opposite group denied .the allegations.
In order to clearify the position an ex parte on the Local Councils in the Local Government Department was consulted, particularly on the points whether 8 members did or did not constitute a quorum under sub‑rule (3) of Rule 3 of the Baluchistan Local Councils (Vote of No‑Confidence against Chairman) Rules, 1981. Simultaneously the Secretary Law was consulted as to the weight to be attached to the allegations with regard to the defectiveness or otherwise of the service of the notice issued for holding of the special meeting."
Petitioner feeling aggrieved filed this Constitution petition on 3‑7‑1986, which was admitted for regular hearing, on 6‑7‑1986 and latter by means of order, dated 8‑7‑1986, respondent was restrained from holding meeting of "The Council" scheduled for 10‑7‑1986. However, on the said date nine members again made a written request for requisitioning the meeting to take steps for expressing no‑confidence against the petitioner. Copy of this was brought on record by petitioner through Civil Miscellaneous Application No. 271 of 1986. Mr. Iftikhar Muhammad learned counsel for petitioner has vehemently urged that (i) respondent No. 1 had no jurisdiction vested in him by law to adjourn the meeting from 29‑6‑1986 to 10‑7‑1986, as according to him by virtue of para. 10(i)(b) of "The Baluchistan Local Council (Conduct Business) Regulation, 1980 (hereinafter called "The Regulation") quorum for the meeting was complete but required number for carrying through the motion was not available, which leads to a directed inference, that motion was not persued, (ii) that paras. 5, 7 and 10(1‑B) and (2) of "The Regulation" deal with factum of adjournment or postponement of meeting. Out of these provisions paras. 5 and 7 could not be attracted as it relates to the power of Chairman; whereas para. 10(1)(b) and 10(2) of "The Rules" would be applicable as more than half members were present which constituted quorum under the law (iii) since motion of No‑confidence could not be carried therefore, fresh motion or requisition for the said purpose could not be initiated within three months as provided under section 31 of "The Baluchistan Local Council Ordinance, 1980" (hereinafter called "The Ordinance"); (iv) "the Regulation is General Law" concerning "conduct of business" of District Council or Union Council etc. whereas "1981 Rules", are special law exclusively dealing with manner of conducting, 'No‑Confidence' proceedings. Therefore, those provisions which are not included in "1981 Rules" cannot be introduced for expediency. As . such he submitted that proceedings initiated against petitioner be deemed to have been dropped/ failed.
2. Whereas on the other hand Mr. Tahir Muhammad Khan learned counsel for private respondents vehemently contended. (i) That powers of adjournment are inherent and in the absence of any specific prohibition be deemed to be ancilliary or incidental to the main source of Authority. (ii) Although "Special Meeting" is required to be convened for considering 'No‑Confidence' motion yet Presiding Officer of the meeting be treated as Chairman otherwise paras. 5 and 7 would be rendered nugatory, and spirit of law would be frustrated. (iii) That "No‑Confidence" proceedings are to be exclusively controlled by "1981 Rules" accordingly provision pertaining to quorum, contained in para. 10(1)(b) of "The Regulation" would not apply. It was maintained that for this purpose quorum would be essentially 2/3rd as provided in section 3 subsection (3) of '1981 Rules' (iv) 1981 Rules are (a) Special Law; (b) promulgated latter in time; as such would result in implied repeal and would supercede the provision of Regulation to the extent of inconsistency; (v) even if it is assumed that further proceedings cannot be taken subsequent to 29‑6‑1986, on the basis of written request of members, dated 17‑6‑1986 yet provisions of section 31 of "The Ordinance" would not be attracted as prohibition of afresh motion within prescribed time would be operative only if motion was put to vote and declaration was made in accordance with Rule 7 of 1981 Rules; (vi) Irrespective of above factors "nine" members, on 10‑7‑1986 have submitted a fresh written request to requisition a meeting, within the preview of Rule 3(1)b or sub‑rule (2)(a) of "19131 Rules", besides, independent of the same on the same request respondent is competent to convene a meeting for considering No‑Confidence Motion as contemplated by Rule 3(2)(a) "1981 Rules".
3. Learned Advocate‑General adopted the arguments of learned counsel for respondent and contended that powers to adjournment being incidental and ancilliary to the main purpose and inherent with authority which can be applied to regulate the proceeding and avoid injustice.
4. We have given our anxious consideration to the arguments advanced on behalf of parties and have also examined provisions of law referred to in the matter. The fundamental contention raised on behalf of petitioner is that the meeting of "The Council" for considering No‑Confidence motion against Chairman, can be convened only under Rule 3(1)(b) of "1981 Rules" which is however, reproduced:‑‑as Chairman otherwise paras. 5 and 7 would be rendered nugatory, and spirit of law would be frustrated. (iii) That "No‑Confidence" proceedings are to be exclusively controlled by "1981 Rules" accordingly provision pertaining to quorum, contained in para. 10(1)(b) of "The Regulation" would not apply. It was maintained that for this purpose quorum would be essentially 2/3rd as provided in section 3 subsection (3) of '1981 Rules' (iv) 1981 Rules are (a) Special Law; (b) promulgated latter in time; as such would result in implied repeal and would supercede the provision of Regulation to the extent of inconsistency; (v) even if it is assumed that further proceedings cannot be taken subsequent to 29‑6‑1986, on the basis of written request of members, dated 17‑6‑1986 yet provisions of section 31 of "The Ordinance" would not be attracted as prohibition of afresh motion within prescribed time would be operative only if motion was put to vote and declaration was made in accordance with Rule 7 of 1981 Rules; (vi) Irrespective of above factors "nine" members, on 10‑7‑1986 have submitted a fresh written request to requisition a meeting, within the preview of Rule 3(1)b or sub‑rule (2)(a) of "1981 Rules", besides, independent of the same on the same request respondent is competent to convene a meeting for considering No‑Confidence Motion as contemplated by Rule 3(2)(a) "1981 Rules".
3. Learned Advocate‑General adopted the arguments of learned counsel for respondent and contended that powers to adjournment being incidental and ancilliary to the main purpose and inherent with authority which can be applied to regulate the proceeding and avoid injustice.
4. We have given our anxious consideration to the arguments advanced on behalf of parties and have also examined provisions of law referred to in the matter. The fundamental contention raised on behalf of petitioner is that the meeting of "The Council" for considering No‑Confidence motion against Chairman, can be convened only under Rule 3(1)(b) of "1981 Rules" which is however, reproduced:‑‑
"3. Revision for convenin for, for moving a vote of non‑confidence. ‑‑ 1) a Not less tan one‑hall o the total number o the members of a Local council may by a written requisition, signed by them and duly served on the Secretary, require the Secretary to call a special meeting of the Local Council to consider a motion of No‑confidence against the Chairman of that Local Council.
(b) On the receipt of the requisition, the Secretary shall, within seven days of the receipt of such requisition, issue notice for holding the required special meeting so that it is held not' later than fifteen days from the date of the receipt of the requisition by him, serving copies on all the members of the Local Council, including the Chairman and shall also send a copy each to the Presiding Officer, specified in rule 4, and the Government by registered post;
(c) If, for any reasons, the Secretary is not available, the requisition under sub‑rule (1)(a) may be served on the Presiding Officer who shall take action as required under rule 3.
(2) If the special meeting under sub‑rule (1) is not called within seven days or is not held within fifteen days of the service of such requisition, the said members may call upon.
(a) The Commissioner‑‑ In the case of a District Council, a Municipal Corporation and Municipal Committee, Quetta.
(b) The Deputy Commissioner/ political Agent of the District‑‑ In the case of a Town Committee, Tehil Council and a Municipal Committee other than Municipal Committee, Quetta.
(c) The Assistant Commissioner‑‑ In the case of a Union Council; and if there is no Assistant Commissioner, the Assistant Political Agent or Additional Deputy Commissioner, having jurisdiction in the area. To call a special meeting for the said purpose, and the Commissioner, Deputy Commissioner/Political Agent or Assistant Political Agent/ Additional Deputy Commissioner, as the case may be, shall within fifteen days of the date of such call giving fourteen clear days notice, hold a special meeting of the Local Council for the above purpose.
(3) The quorum for a meeting under this rule shall be two‑third of the total number of the members of the Local Council.
It appears that three types of meeting can possibly defined by 'The Council'. Details about these types of meetings and manner of business sought to be conducted in such meeting, are specified in section 3 of "The Regulation". For convenience it is reproduced below:‑‑
3. Types of meetings: =(1) Meetings may be either ordinary emergent or special.
(2) The following matter shall be considered at a special meeting:‑‑
(a) oath‑taking ceremony of an elected member,
(b) passing of vote of No‑Confidence against the Chairman of a Local Council, under the rules:
(c) to consider disqualification of a member under section 24 of the Ordinance, 1979;
(d) consideration and passing of the budget;
(e) preparation and passing of bye‑laws and regulations;
(f) sale, lease, transfer or disposal of immovable property;
(g) consideration of commercial schemes to be undertaken by the Local Council;
(h) any other matter which the Government or the Divisional Council may require to be considered at such meeting."
Procedure for adjournment /suspension or postponement of meetings is contained in sections 5, 6 and 7 of "The Regulation" which is also reproduced:‑‑
"5. Adiournment of meeting.‑‑ A meeting may be adjourned by the Chairman room and any of the following grounds:
(i) for lack of quorum.
(ii) for any other reason which the Chairman for reasons to be recorded in writing, may deem to be sufficient.
Provided that an amergent meeting shall not be adjourned except for lack of quorum or a motion to adjourn the meeting being approved by the majority of the members present at the meeting.
I
6. Suspension of the meeting.‑‑ In case of grave disorder at a meeting, the Chairman may suspend any sitting for a period to be specified by him.
7. Postponement of meeting.‑‑A meeting may be postponed by the Chairman either on his own motion for reason to be recorded in writing or on a written request signed by majority of the total number of members of the Local Council:
Provided that no meeting shall except with the prior permission of the Government, be postponed on more than two occasions."
In the same way quorum for conducting the proceedings on all such type of meetings are mentioned in section 10 of the Regulation which too is reproduced for better appreciation of the contentions:‑‑
(1) No business shall be transacted at:‑‑
(a) an ordinary meeting unless a quorum of one‑third of the total number of members constituting the Local Council is present throughout the meeting;
(b) a special meeting, unless a quorum of one‑half of the total number of members constituting the Local Council is present throughout the meeting.
(2) No meeting shall be adjourned for want of quorum until thirty minutes have elapsed from the time fixed for the meeting.
(3) No quorum shall be necessary at the adjourned meeting.
(4) Except as provided in clause (3) any business transacted in the absence of the quorum shall be invalid and shall not be recorded in the Minutes Book.
The first limb of arguments by learned counsel for petitioner is that, meeting convened to consider 'No‑Confidence motion' against Chairman, primarily has to be 'Special Meeting'. Therefore according to him quorum for such meeting should be regulated by para. 10(1),(b) of "The Regulation", already reproduced above. He thus urged that such meeting falls within special category, therefore, quorum for this ought to be one half. On this basis it is submitted that, on 29‑6‑1986, admittedly eight members were present in District Council Hall as such quorum was complete, but 2/3rd majority which is prerequisite for carrying out the motion, was not mustered to support the motion; consequently same be deemed to have failed, accordingly/ postponement of said meeting to 10th July is highly unwarranted and unlawful. It was further argued that provisions for adjournment, suspension or postponement contained in "The Regulation" cannot be invoked by respondent as he is Presiding Officer only for the purpose of particular meeting held under section 3(2)(b) "The Regulation" and has absolutely no concern with meeting under other item of section (3) of the Regulation as said process can be exercised only by Chairman and none else. In order to give, true meaning to this provision definition of "Chairman" prescribed under section 3(4) of "The Ordinance" is relevant:‑‑
"8(4) 'Chairman' means the Chairman of a Local Council constituted under this Ordinance and includes the Mayor of a Municipal Corporation. "
On proper examination of all these provisions it is quite obvious that only elected Chairman has been empowered to transact business of 'The Council'. Thus, main point which requires consideration is, whether in the peculiar circumstances provisions for special meeting contained in 'The Regulation' are at all applicable
On bare reading of section 3(2)(b) of the 'The Regulation' indicates that for purpose of dealing with No‑confidence Motions, law l contemplated framing of rules. Evidently to give effect to said provisions o of law Baluchistan Local (Council) (No‑confidence) against the Chairman" Rules, 1981, were promulgated on 13‑3‑1981. Consequently '1981 Rules exclusively deal with procedure concerning 'Special meeting' for considering 'No‑Confidence Motion'. Learned counsel for petitioner emphatically argued that '1981 Rules' could apply only to the extent the provisions are expressly prescribed there under. He attempted to argue that 'The Regulation' is 'General law and in absence of any repugnancy its provisions regarding quorum etc. mentioned in section 10(1)(b) shall be deemed to be intact. In support of his contention he has referred to the observation (i) Babu Khan v. The Crown 1970 SCMR 107, (ii) The Punjab Province v. L. Sita Ram and others P L D 1956 Federal Court 157 and (iii) Mehrban Khan v. Fayyaz Begum and another P L D 1984 Lah. 202.
Undoubtedly Legislature intended to introduce specific rules of dealing with 'No‑confidence Motion'. Therefore, intention of legislation is very well‑exhibited by subsequent promulgation of '1981 Rules' which are in line with requirement laid down in para. 3(2) of 'The Regulation' Additionally '1981 Rules' are later in time, and have been specifical framed to regulate special meetings for prescribed purpose, therefore, same would obviously hold the field and exclude principle of genera law. In this view, we are supported by the observations Syed Abu: Ala Maudoodi and others v. Government of West Pakistan P L D 1964 SC 673:‑‑
"(nn) Interpretation of Statutes.‑Implied repeated by later Act of earlier Act‑‑Test: that i is clearly impossible for both Acts to be obeyed May be good test in most cases but not in all Court should not be too ready to infer inconsistency‑‑
"(oo) Special Statute:‑‑(General Statute)‑‑Recourse should be had to special statute dealing with special subject, creating special liabilities and providing a special remedy or procedure, and not to any other statute."
(ii) Tahira Haq v. A.H. Khan Niazi, Additional Commissioner (Revenue), Multan P L D 1968 Lah. 344.
"(d) Interpretation of Statute.‑‑Special provision in special statute excludes operation o general provisions in general law."
(iii) Maj. Mehtab Khan v. The Rehabilitation Authority and others PLD 1973 S C 451:
"It is an accepted principle of interpretation of statutes that subsequent legislation on the same subject would, by necessary implication, repeal the earlier law to the extent of their mutual inconsistency or repugnancy. As observed in Goodwin v. Phillips 'the latter's expression of the will of Parliament must always prevail'. The Court naturally leans against implying a repeal, and unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time a repeal will not be implied (see Kutner v. Phillips) The prior statute would be repealed by implication if its provisions were wholly incompatible with a subsequent one, or if the two statutes together would lead to wholly absurd consequences; or if the entire subject‑matter were taken away by the subsequent statute."
(iv) A Javaid, President, Pakistan International Airlines Corporation Employees Union, Karachi v. National Industrial Relations Commission Government of Pakistan Islamabad through Chairman and others P L D 1978 Kar. 64.
(v) Malik Mir Hassan and others v. The State P L D 1969 Lah. 78E and (vi) M. Hassan and others v. Executive Engineer (Civil) Karachi Development Authority and others 1983 C L C 2681. On careful consideration of above discussion and the case‑law we are inclined to hold that procedure for conducting 'Special Meeting' contained in 'The Regulation' will not apply in respect of meeting to be convened for purposes of considering 'No‑Confidence Motion' and in this behalf '1981 Rules' will exclusively be applicable.
Next point for consideration would be, whether 'Special Meeting', could at all be adjourned by respondent, and what should be quorum for such meeting. It may be seen that there are no specific provisions of adjournment /suspension or postponement of the meeting. It was argued that in the absence of specific provision inherent powers incidental or ancilliary to the main object, be exercised provided there is no express prohibition in law. We are afraid that such construction cannot be assumed when specific rules have been framed for prescribed purpose. Evidently when 'special law' provides a specified procedure then it would be obligatory to abide by prescribed rules. Powers can be exercised within the frame work of law and not in violation of law.
The quorum for holding meeting in connection with No‑Confidence motion is mentioned in Rule 3(3) of "1981 Rules". The intention of law maker is quite manifest from aforesaid provision which unambiguously mentions that unless 2/3 of total number of voters participate in meeting for considering "No‑Confidence Motion" meeting cannot be held
In the light of above observation it may be seen that if meeting has not been convened in accordance with 3(1)(b) or is not held within 15 days of service of notice or any other cause; then whether respondent has powers to adjourn or postpone the same
Apparently under "1981 Rules" there does not exist any specific provision for adjournment/ suspension or postponement of the meeting. However, rule 3(2)(a) of "1981 Rules" indicate that if for any reason meeting is not held on the appointed day or is not validly convened then member of "The council" can call upon respondent for requisitioning the meeting. Aforesaid provision caters for the eventualities as in the instant case when meeting could not be held on account of any inherent defect of service on the member or such other good cause. Respondent, therefore, at the behest of requisite number of member may convene fresh meeting for the same purpose. The contention on that on failure to hold meeting for any cause whatsoever; would result in automatically frustration of the motion, in the circumstances does not sound to be reasonable. Obviously when an action is sought for by the member against their Chairman, same cannot be contracted merely by adopting tactful means. Similarly it cannot be deemed to lapse on account of mere default or failure, or omission to how such meeting. Any such interpretation may nullify the spirit of law, and render the object of No‑Confidence and relevant provision totally in effective; because in all such eventualities party likely to be affected may manipulate circumstance by which holding of meeting is disturbed. We are, therefore, inclined to hold that though powers of adjorunment do not vest in respondent yet when meeting is not held on the appointed day, then requisite number of member can always approach respondent for requisitioning of meeting on a fresh date, place and time for the same purpose.
Learned counsel for petitioner also emphasised other limb of his contention that since motion was not carried on the date, therefore, on such failure another request for fresh motion cannot be made by the member unless expiry of 3 months as laid down in section 31 of "The Ordinance" reproduced below:‑‑
31.‑‑A chairman shall vacate office if a vote of no‑confidence is passed against him in the prescribed manner by two‑third majority of the total number of members of the Local Council provided that:‑‑
(a) a motion of no‑confidence shall not be moved before the expiry of three months of his assumption of office as Chairman, and
(b) Where a motion of no‑confidence against a Chairman has been moved and has failed to secure the requisite majority of votes in its favour at the meeting, no similar motion will be moved 'f ' against him before the expiry of three months from the date such motion was moved.
Examination of all these provisions would indicate that prohibition for moving fresh motion is operative only when earlier motion of no confidence against Chairman has been moved and requisite majority of votes are not secured by the movers. Therefore, essential element for depriving members of their right to take immediate action to dislodge Chairman can be caused only when the motion has been put to vote for which specific procedure has been prescribed in Rule 7 of '1981 Rules'.
Rule 7.Declaration of result.‑‑ (1) When all the members of the Local Council, present at the meeting, who wish to cast their votes have so cast their votes, the Presiding Officer shall open the ballot‑box in the presence of the members who care to be present at that time, and count the number of votes for and against the motion for No‑Confidence.
(2) A ballot‑paper which does not bear the official mark shall be rejected.
(3) If the Presiding Officer is unable, to determine with respect to any ballot‑paper whether the motion for No‑Confidence is supported or opposed such vote shall be rejected:
(4) If the number of valid votes supporting the motion for No‑Confidence is not less than two‑‑third of the total number of the numbers constituting the Local Council concerned, the Presiding Officer shall declare the motion has been passed. If the motion is not supported by the requisite majority of votes, it shall be deemed to have failed.
(5) A declaration made by the Presiding Officer under sub‑rule (4) shall be final.
(6) A copy of the declaration shall, within a week of such declaration, be sent to the Government for information and the Election Authority for publication in the official Gazette."
The inference drawn in this behalf hereinbefore appears to be logical and in consonance with spirit of law. Evidently section 31 of ",The Ordinance" aims at safeguarding possibility of recurring frivolous motions intended at harassment of Chairman, which may lead to maneouvring, tending to adversely effect working of "The Council". Thus, a fair margin has been provided in restraining the member in moving a fresh motion when earlier motion against the Chairman had failed after having been put to vote. In that event alone Chairman cannot be disturbed for a period of at least 3 months, probably to provide him fair chance to mend his conduct and make necessary improvement to remove grievance of the members who were not favourably inclined toward him. Thus, in all events except when motion is put to vote and has failed fresh requisitioning of meeting within the preview of rule 3(1)(b) or Rule 3(2)(a) is not hit by section 31 of "The Ordinance". It may been that Legislature in clause (iv) of Rule 7 of "1981 Rules" has specifically mentioned that if motion is not supported by the requisite majority of the voters it shall be deemed to have failed. Therefore, assumption for the failure of motion is contemplated in the prescribed manner and not otherwise. Section 31(b) of "The Ordinance" also reaffirms the requirement of rule 7(4) and provides that motion would fail when the movers fail to secure requisite number of votes. If automatic failure of motion is to be assumed the aforementioned provisions would be rendered ineffective.
Thus, from the foregoing discussion it is concluded that respondent is not competent to adjourn the meeting as such by the order of postponement made by respondent on his own motion, is unlawful.
However, at the same time members of "The Council" in the instant case can always requisition fresh meeting for the same purpose within the preview of sections 3(1)(b) and 3(2)(a) of "1981 Rule" if so desired by them till motion is put to vote and section 31 of the Ordinance will not operate as bar in the given circumstances of the case. Consequently the written request of 9 members which was made, on 10‑7‑1986 for requisitioning the meeting, shall be deemed to be pending, and be dealt with by the competent authority in accordance with "1981 rules".
The petition is thus disposed of in the above terms, with no orders as to costs.
A.A Order accordingly.
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