IN RE: ABDUL LATIF KHAN Versus THE PROVINCE OF EAST PAKISTAN AND OTHERS
1. SIDDIKY, C. J. --‑I have had the advantage of going through the judgment proposed to be delivered by my learned brother M. R. Khan, J. I agree with the reasons given and the con clusion arrived at by him and have nothing more to add.
2. M. R. KHAN, J. ‑This Reference to the Full Bench arises out of Writ Petition No. 451 of 1967 under Article 98 (2) of the Constitution challenging the validity of a no‑confidence motion carried against the petitioner of that petition.
3. The question referred to the Full Bench for decision is
4. "Whether sub‑rule (3) of rule 2 of the East Pakistan Local Councils (Vote of No‑Confidence Rules is mandatory or directory."
5. In order to understand the significance of the question referred, it is necessary to state briefly the facts involved in the case in which this reference has been made. The petitioner of Writ Petition No. 451 of 1967 was the Chairman of the Subidpur Union Council. On 25‑5‑66, a requisition signed by the requisite number of members of the said Union Council was sent to the Chairman of the Council to convene a special meeting for consideration of a no‑confidence motion against him. This requisition was received by the Chairman on 28‑5‑666. The Chairman took the stand that he duty convened a special meeting of the Union Council as per requisition, but, for one reason or the other, the proposed no‑confidence motion fell through. The alleged fact of the Chairman's calling a special meeting and the failure of the, no‑confidence motion was, however, denied by the respondents of the writ petition. On 25‑6‑66, the Controlling Autho rity of that Union Council, namely, the Sub‑Divisional Officer, Sadar (South), Barisal issued a notice for holding the requisitioned special meeting on 7‑7‑66 for consideration of the no‑confidence motion against the Chairman. At the special meeting held on 7‑7‑66 at the instance of the Controlling Authority, the non- confidence motion against the Chairman was said to have been carried by the requisite number of votes. Thereafter the Chairman made the writ petition challenging the validity of the special meeting held on 7‑7‑66 and the resolution adopted at that meeting. On that writ petition, the following rule was issued----
6. "Let a Rule nisi issue calling upon the respondents to show cause why the Special Meeting held on 7‑7‑66 for vote of no n-confidence against the petitioner as Chairman of Union Council No. 5 Subidpur and the resolution adopted therein should not be declared to have been held and adopted without lawful authority or such other or further order or orders passed as to this Court may seem fit and proper."
7. The main point urged in support of the rule, as stated in the order of reference, was as follows :‑
8. "The main contention of the petitioner in this case has been that the Controlling Authority having convened the Special Meeting beyond the second fortnight beginning from the expiry of the first fortnight within which the Chairman is required, under the rules, to hold the meeting, the meeting held on the 7th July 1966 is in violation of sub‑rule (3) of rule. 2 of the East Pakistan Local Councils (Vote of No‑Confidence) Rules, 1963, and, as such, the no‑confidence Motion passed against the petitioner is of no legal effect."
9. This gave rise to an interpretation of sub‑rule (3) of rule 2 of the East Pakistan Local Councils (Vote of No‑Confidence) Rules, in this regard the learned' Judges of the Division Bench making the reference expressed their view as follows:
10. "We were inclined to take the view that the provisions of sub‑rule (3) of rule 2 of the said Rules were mandatory and not directory and we were also inclined to hold, in the facts of the present case, that the meeting should have been held by the Controlling Authority within 25‑6‑1966. In accordance with the provisions of sub‑rule (3) of rule 2 of the aforesaid Rules, the meeting held on 7‑7‑66 without prior sanction of the Provincial Government is without jurisdiction."
11. But the learned Judges did not make any final order in the writ petition inasmuch as their attention was drawn to two decisions of two other Division Benches of this Court P L D 1968 Dacca 17 and 19 D L R 761 wherein it was held that the provisions of sub‑rule (3) of the said rule 2, as regards time mentioned therein, are directory and not mandatory. In view of these conflicting opinions, this reference has been made to the Full Bench for a decision on the question stated in the earlier part of this judgment.
12. The East Pakistan Local Councils (Vote of No‑Confidence) Rules, 1963 (hereinafter called "the No‑Confidence Rules") were made in exercise of the powers conferred by Article 89, read with Article 25‑A of the Basic Democracies Order, 1959. In view of Article 92 (6) of the Basic Democracies Order, these rules are to be deemed to form part of that Order, and they shall take effect accordingly. Sub‑rule (1) of rule 2 of the said Rules provides that a vote of no‑confidence against a Chairman or Vice- Chairman of a Union Council etc. may be moved only at a special meeting convened for the purpose, on requisition signed by not less than one‑half of the total number of existing members of the Council etc. According to sub‑rule (2) of rule 2, the requisition shall briefly set forth the grounds for proposing the vote of no‑confidence and shall be addressed to the Chairman and a copy thereof is required to be simultaneously submitted to the Controlling Authority concerned. Sub‑rule (3) of rule 2 of the said Rules with which we are concerned here, has undergone charges from time to time. The said sub‑rule (3) as was in force at the material time (i.e. June and July 1966, when the disputed no‑confidence motion was initiated and said to have been carried) ran thus:
13. "(3) (i) The Chairman shall convene the special meeting to be held within a fortnight of the receipt of the requisition.
(ii) If the Chairman fails to so convene the meeting or the meeting is not held within the aforesaid time, the. Controlling Authority shall convene the said special meeting within the following fortnight
14. Provided that Government may extend the time of holding the special meeting by the Controlling Authority.
(iii) The special meeting convened by the Chairman shall be held at the office of the Local Council or at such other place as the Chairman with the previous permission of the Controlling Authority, may determine. When such a meeting is convened by the Controlling Authority the meeting may be held at a place as he may choose."
15. The point formulated for decision of the Full Bench is whether this sub‑rule (3) is mandatory or directory. The question whether a particular statutory provision is mandatory or directory is, in many a case, extremely difficult to determine. The phraseology of the provision is not always a sure index, and there is no universal rule to aid in determining this question. The universally accepted view, however, is that it .is duty of the Court to apply the recognised rules of interpretation of statutes and to carefully examine the scope and purpose of the statute and thereby to ascertain the real intention of the law‑maker in enacting a particular provision. Some jurists and superior Courts have also suggested guidelines and laid down tests, but these are again intended for the same purpose, namely, to discover the legislative intent behind a particular provision. Some of these guidelines and tests were quoted in the cases reported in P L D 1959 Dacca 382, P L D 1960 Dacca 438, P L D 1964 Dacca 671, 18 D L R 736 and 19 D L R 761, and it is not necessary to reproduce them here. It may, however, be pointed out that the last mentioned case, namely, 19 D L R 761 is the case in which a Division Bench of this Court relied on the test adopted by the Privy Council in the case of Mentreal Street Railawy Company v. Normandin (1917 AC 170) and took the view that sub‑rule (3) of rule 2 of the No‑Confidence Rules as regards time mentioned therein, is directory. It is noticed that this view was reiterated in the case reported in P L D 1968 Dacca 17 without giving any additional reason.
16. As it is the duty of the Court to ascertain the intention of the law‑maker in enacting a particular provision, I shall consider the No‑Confidence Rules themselves first in an attempt to discover the real intention behind sub‑rule (3) of rule 2 of the said Rules. As already stated, the said sub‑rule (3) has undergone changes from time to time. The No Confidence Rules were made for the first time on the 26th April 1963. Sub‑rule (3) of rule 2 of those Rules, as it stood originally was as follows:‑
17. "(3) The Chairman shall convene the special meeting within a fortnight of the receipt of the requisition. If the Chairman fails to so convene the meeting, the meeting shall be convened by the Controlling Authority."
18. By Notification No. BDLF/S‑II/38‑4/64/199, dated the 26th February 1964, the original sub‑rule (3) of rule 2 was substituted. The relevant part of the substituted sub‑rule (3) of rule 2 is reproduced below:
19. "(3) (i) The Chairman shall convene the special meeting to be held within a fortnight of the receipt of the requisition.
(ii) If the Chairman fails to so convene the meeting or the meeting is not held within the aforesaid time, the Controlling Authority shall convene the said special meeting within the following fortnight
20. Provided that Government may extend the time of holding the special meeting by the Controlling Authority."
21. It appears from a comparison of the substituted sub‑rule (3) of rule 2 with the original sub‑rule (3) of rule 2 that substantial changes have been made by the substituted sub‑rule (3). The word `convene' occurring in the original sub‑rule (3) of rule 2 appeared to have given rise to a doubt as to whether the Chairman was required to give only notice of a special meeting within a fortnight of the receipt of the requisition of whether he was required to actually hold a special meeting within a fortnight of the receipt of the requisition. This doubt was completely removed by the substituted sub‑rule (3) of rule 2 accord ing to which the Chairman is to hold special meeting within a fortnight of the receipt of the requisition. This is abundantly clear from the fact that the expression `within a fortnight' occurring in the original sub‑rule (3) was substituted by the expression `to be held within a fortnight'. This modification as regards meeting is a conscious and deliberate act of the maker of the rules. Under the substituted sub‑rule (3) of rule 2, the time limit within which the Chairman is to hold a special meeting now stands fixed, namely, a fortnight, from the date of the receipt of the no‑confidence requisition. The further modification made by the substituted sub‑rule (3) is that while under the original sub‑rule (3) there was no time‑limit for holding a special meeting by Controlling Authority, a time‑limit was fixed under the sub stituted sub‑rule (3) according to which the Controlling Authority, in the event of the Chairman's failure to hold a meeting within a fortnight of the receipt of the requisition or in case the meeting is not hold within that fortnight, is to hold a special meeting within the following fortnight, that is, the second fort night from the date of receipt of the requisition by the Chairman. Thus a time‑limit of one fortnight for holding a special meeting by the Controlling Authority was introduced by the substituted sub‑rule (3) for the first time. This was also a conscious and deliberate act of the maker of the rules. Again, a proviso to the substituted sub‑rule (3) of rule 2 was introduced for the first time. The proviso authorises the Government to extend time for holding the special meeting by the Controlling Authority. This proviso is very significant in that it reveals the importance of the time‑limits fixed by the substituted sub‑rule (3) of rule 2. The necessary implication of this provisio is that it is the intention of the maker of the rules that the time‑limit of one fortnight in the case of holding the requisitioned special meeting by the Chairman and a time‑limit of another fortnight in the case of holding the special meeting by the Controlling Authority are rigid. It is also significant that under the said proviso the Government has the power to extend the time of holding the special meeting, if that meeting is held by the Controlling Authority and not by the Chairman. Thus the implication is all the more clear that the Chairman is required to hold the requisitioned special meeting within the fortnight allowed to him since there can be no extension of time in his case under the said proviso. Under the substituted sub‑rule (3), the Controlling Authority is required to hold a special meeting within the second fortnight allowed to him, that is, the fortnight following the first fortnight from the date of receipt of the requisition by the Chairman, but even the Controlling Authority cannot hold that meeting beyond the fortnight allowed to him, unless an extension of time has been granted by the Govern ment in pursuance of the proviso to the substituted sub‑rule (3). In this state of things, as introduced by the substituted sub rule (3) of rule 2 of the No‑Confidence Rules, the question that really arises for determination is whether the Chairman is com petent to convene a special meeting after the expiry of the fortnight from the date of the receipt of the requisition and whether the Controlling Authority, without having obtained an extension of time from the Government, is competent to hold a special meeting beyond the second fortnight. This goes to the root of the matter, namely, the respective jurisdiction of the Chairman and the Controlling Authority to hold a special meeting. The substituted sub‑rule (3) of rule 2 confers statutory powers on the Chairman and the Controlling Authority to convene a special meeting within the time‑limits specified therein, but does not merely impose a duty on them. The exercise of that power in accordance with the provision by which it is conferred, is a matter relating to jurisdiction. It is true that the point of reference formulated in this case is whether sub‑rule (3) of rule 2 is mandatory or directory. But the real import of this point of reference, in the context of what has been discussed above, relates to the jurisdiction of the Chairman and the Controlling Authority to hold a special meeting. In fact, the question of jurisdiction was ‑specifically raised in the order of reference. In analysis of the substituted sub‑rule (3) of rule 2, as has been made above, makes it perfectly clear that it is the intention of the maker of the rules that the Chairman has jurisdiction to hold a special meeting within a fortnight of the receipt of the requisition and the Controlling Authority has jurisdiction to hold such meeting within the second fortnight of the receipt of the requisition. It, therefore, follows as a corollary that the Chairman is not competent to hold a special meeting after the expiry of B the fortnight from the date of the receipt of the requisition and so also the Controlling Authority is not competent to hold a special meeting after the expiry of the second fortnight, unless an extension of time is granted by the Government. To hold otherwise is to invite chaos and confusion in the operation of the No‑Confidence Rules. It may be incidentally mentioned here that the above intention of the maker of the rules has been more, clearly perpetuated in the latest Rules on the same subject made in February 1968 (vide Gazette of East Pakistan, Extraordinary,) dated 19‑2‑69). Sub‑rule (2) of rule 3 of the latest Rules provides that "if for any reason the Controlling Authority is unable to, convene the meeting within the scheduled time, he shall intimate the reason to the Government and obtain the permission of the Government to convene the special meeting at any other time"
22. If it is conceded for the sake of argument that the substituted sub‑rule (3) of rule 2 is directory only, involving no invalidating consequence in the event of the Chairman or Controlling Authority's holding a special meeting beyond the respective time‑limits specified in the rules, difficulties are likely to arise in the way of smooth working of the No‑Confidence Rules. Under Sub‑rule (2) of rule 2 of the said rules,' a copy of the requisition for a no‑confidence motion is simultaneously submitted to the Controlling Authority. Again, under rule 3 of these Rules, a copy of the notice issued by the Chairman calling a special meeting along with a copy of the agenda is simultaneously transmitted to the Controlling Authority. Thus the Controlling Authority is kept in the picture as to the holding of a special meeting by the Chairman. If the Chairman, who is required under the substituted sub‑rule (3) of rule 2 to hold a special meeting within a fortnight of the receipt of the requisition, fails to do so and calls such meeting to be held, say, within the second or third fortnight, the Controlling Authority who is already in the picture, may himself call a special meeting after the expiry of the first fortnight under the power conferred on him by the substituted sub‑rule (3). In the event, two different authorities, namely, the Chairman and the Controlling Authority would be calling two different special meetings for the same purpose, and this will eventually create chaos and confusion in the smooth working of the rules. Again, if the Chairman is com petent to hold a special meeting after the expiry of the first fortnight from the receipt of the requisition, then, he may defer the holding of such meeting as far as possible in order to continue to hold the office of Chairman and to perform functions of that office, keeping the no‑confidence requisition in animated suspension. This, however, could not be the intention of the maker of the rules. It is a recognised rule of interpretation of statutes that where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to C be regulating, and that alternative is to be rejected which will introduce absurdity, uncertainty, friction or confusion into the working of the system (see 1924 A C 185, A I R 1943 Lah. 148 and A I R 1961 S C 1549). The principle of statutory interpretation is obviously against that Chairman's competence to hold a special meeting after the expiry of the first fortnight. Coming now to the Controlling Authority, if he is competent, as of right, to hold a special meeting after the expiry of the second fortnight, the proviso to the substituted sub‑rule (3) of rule 2 where under the Government has the power to grant in extension of time, will become meaningless or inoperative. Another recognised principle of interpretation of statutes is that, effect should be given to every part and every word of the statute. Hence, as a general rule, the Courts should avoid a construc tion which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory (Ref. P L D 1957 S C 219). On this principle of interpretation, the proviso to the substituted sub‑rule (3) of rule 2 must be given effect to, and the said Proviso can take effect only if it is taken that the time‑limit of one fortnight (that is, the second fortnight from the date of receipt of the re quisition by the Chairman) for holding a special meeting by the Controlling Authority is rigid.
23. The reasons why rigid time‑limits have been prescribed by the' substituted sub‑rile (3) of rule 2 are not difficult to seek. When a requisition is sent to the Chairman of a Union Council for holding a special meeting for consideration of a no‑confidence motion against him, it is only reasonable that such motion should be disposed of without the least delay in the interests of the Union Councils itself. If such a motion be not disposed of expeditiously, the functions of Union Council will suffer, and there may be even a stand‑still in its normal work. But for the prescription of a rigid time‑limit, the Chairman concerned in order to perpetuate his own office, may, to the detriment of the interests of the Union Council, cause intentional delay in holding a special meeting for consideration of the no. confidence motion against him. Under the original sub‑rule (3) of rule 2, there was no time‑limit for holding such a special meeting by the Controlling Authority. This gave a handle to the Controlling Authority to hold a special meeting according to his convenience, and this was hardly conducive to the interests of the Union Council concerned. Obviously, sub‑rule (3) of rule 2 fixing rigid time‑limits was made sometime in the year 1964, in place of the original sub‑rule (3) of rule 2 in order that such situations may not arise. The intention of the law‑maker that the affairs of a Union Council should not be held up and that the same should be disposed of without the least delay is reflected in some other provisions as well, namely, rules 5 and 6 of the No‑Confidence Rules, Article 74 of the Basic Democracies Order and the various provisions contained in the East Pakistan Local Council (Resignation and Removal of Members/Chairman) Rules made under the said Order.
24. In the case reported in 19 D L R 761, a Division Bench, of this Court, no doubt, took the view that the provisions of sub‑rule (3) of rule 2 of the No‑Confidence Rules, as regards time mentioned therein, are directory. This view was taken on the basis of the test adopted by the Privy Council in the case reported in 1917 A C 170, but, in doing so, the learned Judges of the said Division Bench did not appear to have taken into consideration the substantial changes made in the original sub‑rule (3) of rule 2 and the implications of those changes. It appears from the case decided by the Privy Council that a public duty, more or less, of formal nature, namely revision of the list of Jurors was not performed in accordance with law. On these facts, it was held by the Privy Council that non‑performance of that duty would not involve any invalidating consequence, because others had no control over the public functionary to prepare the jury list. But the facts of the present case, as revealed by the substantial changes made in the No‑Confidence Rules from time to time, are quite different. As stated by the Queen's Bench Division in the case re ported in (1962)1 Q B 718 at 726, every case involving a question as to whether a particular provision is mandatory or directory should be determined 'by looking at the statute which is under con sideration and examining the whole scope and purpose thereof.' When, in the instant case, the intention of the law‑maker has been discovered by analysing the relevant rules themselves and interpreting the same in the light of the recognised rules of inter pretation of statute it does not appear necessary to give overriding consideration to one or the other test laid down for the purpose of determining the mandatory or directory character of a legal provision. Even in the Privy Council case (1917 A C 170) relied on by a Division Bench of this Court in 19 D L R 761, it was stated that no general rule can be laid down, and that in every case the object of the statute must be looked at'. Having considered the rules involved in the present case in the historical background of the changes made therein and the fact that the time‑limits prescribed by them relate to the jurisdiction of the Chairman and the Controlling Authority, I do not think that the teat adopted by the Privy Council in the facts of that case, can be invoked here.
25. For all these reasons, I am of opinion that sub‑rule (3) o rule 2 of the No‑Confidence Rules is mandatory in the sense that the Chairman is competent to hold a special meeting within fortnight of his receiving the requisition and not after the expiry of that fortnight and that the Controlling Authority is competent to hold the special meeting in the second fortnight from the P date of receipt of the requisition by the Chairman and not after the expiry of that fortnight, unless an extension of time is granted by the Government, and I would answer the point of reference accordingly.
26. SALAHUDDIN AHMED, J.--- ‑I have listened to the Judgment delivered just now by my learned brother M. R. Khan, J. With great respect to my learned brother I feel myself unable to agree with the answer he has given to the question referred to the Full Bench.
27. The question referred to the Full Bench for consideration is whether sub‑rule (3) of the rule 2 of the East Pakistan Local Councils (Vote of No‑Confidence) Rules is mandatory or directory.
28. The facts upon which the question has arisen may briefly be stated as follows: The petitioner as Chairman of a Union Council having failed to convene the special meeting in accordance with rule 2 (3) (1) of the East Pakistan Local Councils (Vote of No‑Confidence) Rules, hereinafter called the rules, in response to a requisition by the requisite number of members of the Union Council to consider a resolution of no‑confidence against the Chairman of the Union Council, the Controlling Authority by its notice dated 25th June 1966, convened the special meeting on 7th July 1968, that is, beyond the prescribed period 12 days too late. In the meeting held on the 7th July 1966 a no‑confidence resolution was passed against the petitioner. The petitioner, who himself deliberately failed to convene the meeting under the rules having felt aggrieved by the passing of the aforesaid no‑confidence resolution, challenged the legality of the resolution before this Court upon an application under Article 98 of the Constitution and obtained a Rule nisi. The legality of the passing of the no‑confidence resolution has been disputed on the ground that the special meeting convened on the 7th July 1966 was beyond the period prescribed under rule 2 (3) (ii) of the Rules and it was held without first having obtained from the Government extension of time. A Division Bench of this Court presided over by the learned Chief Justice, which heard the rule, having been inclined to take the view that the provisions of rule 2 (3) of the Rules were mandatory and not directory as have been held by two different Division Benches of this Court in cases reported in 19 D L R 761 and 461, made the present reference.
29. Mr. Abdur Rashid learned Advocate appearing on behalf of the petitioner has contended that the rule is directory. He 44s based his contention mainly upon the language of the rule. In support of his contention he has cited a case reported in 16 D L R 536, which is not applicable to the present case inasmuch as rule 3 of the Rules was never complied with. Rule 3 provides that at least one week before holding the meeting the notice of the meeting along with certain other matters shall be given to every member of the Council. This notice was never sent to one of the members, namely, the Chairman of the Union Council at all.
30. Learned Advocate‑General appearing on behalf of the State has on the contrary strenuously contended that the rule is mandatory. In support of his contention he has placed before us a number of decisions, foreign as well as Pakistani. I shall hereafter discuss these cases.
31. On the facts of the case the question that really calls for consideration is whether the aforesaid no‑confidence resolution passed at a special meeting convened by the Controlling Authority on the 7th July 1966, without the prior sanction of the Pro vincial Government to hold the meeting on that day is illegal and without jurisdiction. Consideration of the question involves the process of finding out the true intent and scope of the rules.
32. The rules purport to have been framed in exercise of the powers conferred under Article 89 read with Article 25‑A of the Basic Democracies Order, 1959, hereinafter called the Order. Rule 89 authorises the Provincial Government to make the rules.
33. Article 25‑A which, inter alia, deals with the, passing of a no‑confidence resolution against the Chairman of an Union Council and its effect, provides the following in clause (3) :‑
34. "No Court shall enquire into or question the validity of any motion of no‑confidence passed against a Chairman or Vice‑Chairman."
35. The relevant provisions of the rules apart from the rules as a whole that call for consideration in this respect are as follows:‑
36. Rules 2 (3), (f), (ii) and 5 (1) (b).
37. "(3) (i) The Chairman shall convene the special meeting to be held within a fortnight of the receipt of the requisition;
(ii) If the Chairman fails to so convene the meeting or the meeting is not held within the aforesaid time, the Controlling Authority shall convene the said special meeting within the following fortnight
38. Provided that Government may extend the time of holding the special meeting by the Controlling Authority."
39. "5 (1) (a) In case the requisite two‑thirds number of the existing members do not attend the meeting within one hour of the appointed time, the proposal for the vote of no confidence shall, subject to confirmation by the Controlling Authority, be deemed to have been moved and failed and the meeting shall accordingly be terminated with an open declara tion in presence of the members and a note recorded to this effect by the Presiding Officer who shall forthwith submit his report to the Controlling Authority.
(b) The Controlling Authority shall, within 48 hours of receipt of such report from the Presiding Officer, confirm the same and issue formal orders accordingly communicating the said orders to the local council and officers concerned:
40. Provided that when the Controlling Authority is satisfied that two‑thirds number of the existing members could not attend the meeting due to reasons and circumstances beyond their control, he may withhold his confirmation and himself convene a fresh meeting of the Councillors concerned for moving the vote of no‑confidence to be held within the fortnight of the date of issue of the order ; and the provisions of rules 2, 3 and 4 shall, so far as applicable apply."
41. Reading the rules as a whole with particular reference to the provisions quoted above, and the provisions of Article 25‑A (3) of the order it seems to me that the purpose of the rules is to consider and dispose of the resolution of non-confidence quickly. To achieve this end the author of the rules put time limits within which the Chairman, and failing him the Controlling Authority must call a special meeting to consider such a resolution. The essence of the rules is to hold the special meeting and dispose of the no‑confidence resolution without an) loss of time. Apparently this is the reason why the Legislature under Article 25‑A (39 debarred a Court from enquiring into or questioning the validity of the resolution of no confidence. Proviso to Article 25‑A also prohibits a Motion of no‑confidence being moved against the same Chairman for a period of twelve months from the date on which an earlier such Motion failed. Rule 5 (1) (b), proviso indicates that under certain circumstances the Controlling Authority can convene a first meeting of the Councillors beyond the prescribed fortnight in rule 3 (ii) without Reference to the Government.
42. It appears that prior to 26th February 1964, rule 2 (3) did not put any time limit upon the Controlling Authority to call the special meeting on the failure of the Chairman to convene the meeting within a fortnight of the receipt of the requisition. This was obviously a lacuna, and it bas now been remedied. The fact, however, that a time limit has now been put supports the view that the Legislature intended that the special meeting for consideration of a no‑confidence resolution should be held quickly and the resolution disposed of.
43. The following tests for deciding whether a particular provision of a Statute is directory or imperative have been mentioned by the Privy Council in the case of Montreal Street Railway Co. v. Normandin (1917 A C 170)
44. "The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn., p. 596 and following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
45. These tests have been consistently followed in the Indo‑Pak. sub‑continent.
46. Similarly in the cases of Caldow v. Pixell ((1877) 2 C P D 562) and Phillips v. Golf (17 Q B D 805) it has been held that the time limit mentioned in similar circumstances is directory only and not imperative.
47. In Maxwell, l1th Edn., p. 364 on the basis of two cases reported in 1926 A C 619 and 1939 A C 277 (P C) it has been stated that the whole scope and purpose of the statute under consideration must be regarded. Crawford on the `Construction of Statutes' at page 529 while dealing with Statutes pertaining to official action says inter alia. "As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory or if nothing is stated regarding the consequences or effect of non‑compliance, the indication is all the stronger that it should not be considered mandatory".
48. In the case reported in P L D 1960 Dacca 438 the Court considered section 57of the Pakistan Criminal Law Amendment Act, 1958 which provides that previous statements of witness to be examined by the prosecution at the trial shall be supplied to the accused at least one week before the commencement of the trial. Such statements in the case under report were supplied actually only five days before the commencement of the trial.
49. It was held:
50. "Where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the pres cribed or appointed time. The requirement of subsection (7) of section 5 of the Pakistan Criminal Law (Amendment) Act, 1958 for the supply of copies of previous statements provides only for the performance of a public duty over which others have no control. In such circumstances the provisions should be regarded as being in the nature of mere instructions for the guidance of those on whom the duty is imposed and not as a mandatory provision entailing the vitiation of the resultant acts as a consequence of non‑compliance. However, if any prejudice or injustice is caused by such non‑compliance to any accused person, the Court will not hesitate to set aside the trial and, if necessary, order a re‑trial.
51. Montreal Street Railway Company v. Normand L R 1917 A C 170; Biswanath Khemka v. Emperor A I R 1945 F C 67 and Interpretation of Statutes by Maxwell, p. 376 ref."
52. In P L D 1959 Dacca 382 it was held that failure on the part of the special Judge to make the reference under section 52 (1) of East Bengal State Acquisition and Tenancy Act (XXVIII of 1951) within 90 days by itself does not render the reference competent. The provision that the reference has to be made within 90 days is not mandatory but directory.
53. In A I R 1945 F C 67 it has been held that the direction laid down in section 256 of the Constitution is directory and not mandatory, and non‑compliance would not render an appoint ment otherwise regularly and validly made ineffective.
54. In all these cases the language of the particular law was imperative as in the present case. I think the principles laid down in the cases cited above are clearly applicable to the rule under consideration. The prescription of rule 2 (3) (ii) is a direction upon a public officer to do a public duty, namely, convene a special meeting within a specified time. The invalidation of the no‑confidence resolution would work serious general inconvenience to persons who have no control over the Controlling Authority who has been charged with the duty of convening the special meeting.. Furthermore the invalidation will far from‑ advancing the purpose for which the rules have been made will tend to defeat the object of the rules. In these circumstances, I think, the prescriptions are mere instructions for the guidance of the Controlling Authority, and they are therefore, directory only. It is also significant to note that the rules are silent about the consequences or effect of non compliance with rule 2 (3) (ii), and this is yet another indication that the rule is directory.
55. It is said that if the rule be directory the Chairman or the Controlling Authority may call the meeting at any time he likes according to his discretion. This confuses the two concepts of "discretionary" and "directory". The Chairman or the Control ling Authority has no discretion in the matter of convening the meeting. He has to convene the meeting within the pres cribed time. The question, however, is if for any reason of inadvertence or otherwise the meeting has been convened some time after the prescribed period, will the meeting be without jurisdiction so as to invalidate its proceedings. In my opinion having regard to the principles laid down in the cases mentioned above it will not be so.
56. It has been contended that such construction will make the proviso to rule 2 (3) (ii) redundant. This is not true. The proviso has its purpose, and this is to serve as a check upon the Controlling Authority that he calls the meeting within the prescribed time. If he fails to do so he has to explain his lack of diligence in the matter to the Provincial Government, which of course is not desirable for a responsible officer like the Controlling Authority who is invariably a Sub‑Divisional Officer. Non‑compliance with the rule may entail a departmental action against the Controlling Authority but it does not vitiate the proceedings of the meeting convened by him.
57. There is no likelihood of any conflict either. If the Chairman fails to call the special meeting within the prescribed time the Controlling Authority acquires a right to convene the meeting himself. If the Chairman is honest he will convene the meeting according to law. If he is not so he will put off the evil day as long as possible and will seldom call the meeting at all. Once, however, the Controlling Authority has convened the meeting the Chairman cannot again do so. After all the entire purpose of the rules is to hold the special meeting to consider the no‑confidence resolution. The office of the Chairman is an elective one, and the fact that 2/3rd of the members of the Union Council have submitted requisition for considering a resolution of no‑confidence against him shows that the Chairman has lost the confidence of the council. Acting, therefore, on democratic principles, the Legislature has provided that such a resolution should be considered and disposed of at a special meeting of the Union Council without loss of time so as to pave the way for a smooth and democratic working of the Council which indeed is the main object and purpose of the rules.
58. If the meeting of 7‑7‑66 be now declared a nullity the result would be that the matter which has already been delayed by the action or inaction of the authority for more than two years would be further delayed and the only person who will benefit from such a course is the petitioner himself. It would be putting premium on disobedience of the rules. In fact it would reward the Chairman for his own disobedience in not complying with the rules. Furthermore this course will amount to penalising the people for whose benefit the rules have been framed without any fault on their part and giving lease of life to the Chairman for indefinite period with consequent evil effect upon the democratic working of the Union Council itself. How can the Chairman be expected to discharge his duties and the council to function efficiently when the Chairman has lost confidence of the Council. Such unreasonable situation could never have been contemplated by the Legislature.
59. In the case of Edwick v. Sunbury on Thames Urban District Council (L R (1962) 1 Q B D 229
60. ) in contravention of the Town and Country Planning General Development Order and Development Charge Applications Regulations, 1950 the local planning authority refused the plaintiff's application for permission to use his land for a particular purpose more than two years after the application had been made. Under the law 3 months and 2 months as the case may be is the time within which a reply to such application shall be given. It was held that on a true construction of the provisions of law in this respect they were mandatory, rather than directory, because, first, the language of the law suggested of such an intention ; secondly, it was consonant with the general scheme of the act and the order that there should be stringent terms on which the local planning authority should deal with the application ; and, thirdly, a conclusion to the contrary may result in a grave injustice to the land owner. The notice of refusal of planning permission, therefore, was held void.
61. It is evident that while construing similar provision of law not only the language of the law but also the general scheme of the act as well as the consequences that may follow non- compliance with the law should be considered for the purpose of deciding whether a particular law is mandatory or directory.
62. In the case before us, as I have already noticed, it is not consonant with the general scheme of the rules that failure to strictly comply with the terms of rule 2 (3) (ii) so far as time is concerned should vitiate the proceedings of the meeting. Fur thermore a conclusion to the contrary may result in grave injustice to the majority members of the Council who requisitioned the meeting, and is likely to defeat the very object of the rules. There is no evidence that any prejudice has been caused to any party. If the Controlling Authority has for some reason failed to call the meeting within the specified time and he does not obtain from the Provincial Government an extension of time for holding the meeting an impasse may be created with the result that consideration of the no‑confidence resolution will be held up indefinitely with resultant evil effect upon the working of the Union Council. Such a situation, in my opinion, was never contemplated by the Legislature.
63. For the reasons stated above I find no reason to change my views which I expressed as a member of two different Division Benches in the cases reported in 19 D L R 761 and 469.
64. I, therefore, answer the question referred to the Full Bench, thus :‑
65. The prescriptions of sub‑rule 3 (ii) of rule 2 of the East Pakistan Local Councils (Vote of No‑Confidence) Rules are direc tory and not mandatory in the sense that a mere non‑compliance with the sub‑rule as to time limit does not vitiate the no n-confidence resolution passed in the special meeting convened by the Controlling Authority beyond the prescribed time.
66. K. B. A. Answer accordingly.