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Civil Appeal No. 46 of 1962, decided on 18th June 1963.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 28th June 1961, in Writ Petition No. 354 of 1960).

, Art. 39 "Business" of Local Council‑Election of Chairman included in term "business"‑Governed in West Pakistan by West Pakistan Basic Democracies (Election of Chairman) Rules, 1960‑Framing of rules, however, not essential for "disposal of business."

Held, that election of Chairman of a Union Council was included in the term "business" as used in Article 39, Basic Democracies Order, 1959.

Rules relating to the election of the Chairman, Basic Democracies in West Pakistan, were framed on 11‑1‑1960 and were called : West Pakistan Basic Democracies (Election of Chairman) Rules, 1960.

Framing of rules was not essential for the disposal of any business. The Governor was empowered to frame rules and if the rules were framed the Union Council would be bound by them, but that does not mean that in the absence of rules the Union Council had no power to dispose of any business.

, Art. 39(4)‑(No proceedings to be invalid for a person who is not entitled to vote, having voted or taken part in proceedings)‑Cl. (4) applicable to first election of Chairman of Union Council‑West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, r. 7‑"Irregularity" different from "sufficient reason"‑West Pakistan Basic Democracies (Assumption of Offices) Rules, 1960.

Islam‑ul‑Haq Advocate Supreme Court instructed by Wall Muhammad Attorney for Appellant:

S. M. Zafar Advocate Supreme Court instructed by Muneer Ahmad Attorney for Respondent No. 1.

Respondent No. 2 : Ex parte.

Date of hearing : 18th June 1963.

Muhammad Nawaz Khan appellant in Ka this appeal by special leave is an appointed member of the Union Council of Chak No. 19/14‑L, district Montgomery, while Ghulam Farid, respondent No. 1, is an elected member of the same Union Council. Both the appellant and the respondent were candidates for election to the office of the Chairman of the Union Council and in an election which was held on the 6th February 1960, the respondent was elected. The appellant filed an election petition before the Controlling Authority against the election of the respondent, the main ground for attack on the election being that the respondent had been proposed by Abdul Majid an appointed member who was less than twenty‑five years of age and, therefore, not eligible for being appointed as a member. This ground was given effect to by the Controlling Authority and the election of the respondent was set aside. It would be convenient to reproduce the whole of the order of the Controlling Authority which is a short one.

"This is a petition under rule 7 of the Basic Democracies Chairman Election Rules, 1960, to set aside the order of they Presiding Officer by which Ghulam Farid was declared as Chairman. The main ground urged by the petitioner is that the proposal. Abdul Majid was a minor and was not qualified to make the proposal. Abdul Majid son of Bakhtawar is a nominated member. As per School Leaving Certificate, this Abdul Majid is under 25 years of age. As per my interpreta tion of Article 21, read with Schedule 11 of the Order, the age of nominated member must be 25 years. Therefore, the proposal was made by a person who was not qualified. Election of Chairman is hereby, set aside. The person who is under age is to be removed from nomination. Re‑election ordered."

Against the order of the Controlling Authority the respondent approached the High Court of West Pakistan in the exercise of its writ jurisdiction with a prayer that the order be set aside. A number of grounds of attack were put forward, but the one which found favour with the High Court was that by virtue of Article 39(4) of the Basic Democracies Order no proceedings could be held to be invalid on account of the fact that a person who was not entitled to vote had taken part or voted in any proceedings. The High Court set aside the order of the Controlling Authority and restored to the respondent his office as Chairman of the Union Council.

It would be proper before stating the contentions raised by learned counsel for the appellant to reproduce Article 39 of the Basic Democracies Order. It runs :

"39. Disposal of business.‑(1) All business of a Local Council shall to the extent and in the manner prescribed, be disposed of at its meetings, or at the meetings of its committees, or by its Chairman or its servants.

(2) All meetings of a Local Council shall be presided over by its Chairman, and, unless otherwise provided by this Order, in his absence by a member chosen for that purpose by the members present.

(3) A Local Council shall have power to act notwithstanding any vacancy in its membership.

(4) No proceedings shall be invalid by reason only that some person who was not entitled to do so, sat or voted, or otherwise took part in the proceedings.

(5) Minutes of the meetings of a Local Council shall be drawn up and recorded in a book to be kept for the purpose.

(6) All decisions taken by a Local Council shall be reported to the Controlling Authority within the prescribed period."

With respect to the applicability of Article 39 (4) learned counsel for the appellant has contended before us :‑

(i) that the election of Chairman is not a business of the Union Council because rules relating to transaction of business had been framed by the Governor only on the 30th June, 1960, and clause (4) of this Article is applicable only to disposal of business ; and

(ii) that clause (4) applies only to a meeting presided over by the Chairman of the Union Council.

As regards the first of these contentions it will in the first place be noted that clause (4) does not speak of disposal of business at all. It speaks of proceedings. On this point the contention of learned counsel is that clause (4) should be read as being subject to clause (1) which speaks of disposal of business and although in clause (4) reference is only to proceedings the clause will not be applicable unless there be disposal of business. But the Legislature has deliberately used the word "proceedings" and has not used any words of limitation confining the proceedings to those relating to disposal of some business of the Union Council. Even if it be assumed that clause (4) relates only to disposal of business the clause remains applicable to the proceedings with which we are concerned. That the election of a Chairman is business of a Union Council cannot be denied. Learned counsel accepts that if on account of resignation or otherwise the office of the Chairman became vacant and another Chairman was to be elected such election would be a business of the Union Council. What he urges is that rules relating to transaction of business by the Union Councils were framed by the Governor in exercise of the powers vested in him under Article 89 of the Basic Demo cracies Order only on the 30th June 1960, and as Article 39 refers to the extent and manner prescribed no business of the Union Council could be said to be transacted till rules were framed by the Governor with respect to it. Assuming that the framing of rules was necessary for the disposal of business a simple reply to the argument of learned counsel is that rules relating to the elec tion of the Chairman which are called "The West Pakistan Basic Democracies (Election of Chairman) Rules" had already been framed on the 11th January 1960. These rules provide for the procedure to be adopted for the election of the Chairman. So with respect to the disposal of this business rules had already been framed. It is of no consequence that general rules as to disposal of business were framed later. It was not necessary for the Governor to frame only one set of rules with respect to the disposal of the whole of the business of Union Councils. It was open to the Governor to frame rules with respect to any particular business and henceforth that business could be disposed of by the Union Council. We should not be understood at the same time as laying down that the framing of rules was essential for the disposal of any business. The Governor was empowered to frame rules and if the rules were framed the Union Council would be bound by them, but that does not mean that in the absence of rules the Union Council had no power to dispose of any business.

The second objection of learned counsel for the appellant to the applicability of clause (4) of Article 39 is of no greater force. Before proceeding further the provision under which the first meeting of a Union Council is held has to be explained. Under the West Pakistan Basic Democracies (Assump tion of Office) Rules, 1960, after the notification of the names of members of a Local Council the Controlling Authority appoints a date for the assumption of office by the Local Council and for that purpose a meeting of the Union Council has to be held. This meeting is to be presided over by a gazetted officer to be nominated by the Controlling Authority for this purpose. The Presiding Officer administers oath of office to the members of the Union Council present at the meeting and after such oath has been administered, he calls upon the members to elect their Chairman.

The contention of learned counsel is that in accordance with clause (2) of Article 39 all meetings are to be presided over by a Chairman or in his absence by a member chosen for that purpose by the members present and that clause (4) is applicable only to a meeting which is presided over in accordance with clause (2). As already observed clause (4) applies to proceedings and does not speak of a meeting, but assuming that it applies only to a meeting, we do not see why at least the principle embodied in clause (4) should not be applicable to a meeting held under the Assumption of Office Rules which is presided over by an officer appointed by the Controlling Authority. It is obvious that the first meeting which is held before the Chairman is elected cannot be presided over in accordance with Article 39 (2). It could not have been the intention that a different principle should apply to this first meeting and an irregularity which if it occurred in another meet ing would be condoned is not to be condoned because it occurs in this meeting.

We have dealt with the argument as presented but we would point out the proper approach in a case like the present. The election petition filed against the election of the respondent had been filed under rule 7 of the Basic Democracies (Election of Chairman) Rules. This rule runs

"7. Election Petition.‑(1) No election of a Chairman shall be called in question except by a petition presented to the Con trolling 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 manner provided by these rules."

The rule provides that the election can be set aside on the ground of material irregularity or any sufficient reason. The question to be decided by the High Court was whether any material irregularity or sufficient reason had been established before the Controlling Authority on the basis of which the election could be set aside. It had not even been alleged by the appellant that the irregularity TOW upon was material. There was no plea that Abdul Majid who proposed the name of the respondent had vote for the respondent and that if his vote was not counted j the result of the election would be affected. The only question for consideration was whether the fact that the member who proposed the name of the respondent was not qualified to be a member was a "sufficient reason" for setting aside the election. According to Article 39 (4) the fact that the person who voted was not entitled to vote does not by itself vitiate any proceeding and it cannot, therefore, be said that this could constitute "sufficient reason". At the same time it is difficult to accept that irregularities which are not material can be "sufficient reason." The ground of attack is admittedly an irregularity and it is not alleged that it is material. An anomaly would be created if immaterial irregularities could be made a ground for setting aside an election by bringing them within "sufficient reason". Irregu larity having been separately dealt with should be deemed to have been excluded from "sufficient reason".

This appeal fails and is dismissed with costs.

A. H. Appeal dismissed.

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