P L D 1967 Dacca 293 (PLP)

SATTAR, J.‑The petitioner Afazuddin Ahmed in this application under Article 98 (2) of the Constitution has called in question an order passed by the Commissioner, Rajshahi Division as Controlling Authority under the Basic Democracies Order, 1959 confirming the resolution passed by the District Council, Rajshahi recommending the removal of the petitioner from Membership of the Rajshahi Municipal Committee and Membership and Chairmanship of No. 3 Union Committee of that District. By the same order the Commissioner has also removed the petitioner from Membership of the Rajshahi Municipal Committee and Membership and Chairmanship of the Union Committee No. 3 and has further declared that the petitioner would be disqualified to seek election of any local Council for a period of two years from the date of the order. The facts of this case, which are not in dispute may be shortly stated as follows. The petitioner was elected a Member of Union Committee No. 3 of the Rajshahi Municipality and thereafter became its Chairman. By a Notification issued by the Divisional Commissioner under the Basic Democracies. Order the petitioner was appointed a Member of Rajshahi Municipal Committee. On the 30th March 1964, the petitioner received ,a Notice from the Office of the Commissioner of Rajshahi Division directing him to show cause within fourteen days from the receipt of the notice why he should not be removed from Membership of the Rajshahi Municipal Committee on the ground that his son Mesbahuddin who used to live jointly with him executed three items of work in the Development Project of the Rajshahi Municipality in 1962‑

63. The Notice further stated that the petitioner was interested in the said contract works, and therefore, had incurred the disqualification specified in Part If of the Second Schedule to the Basic Democracies Order, 1959 read with Rule 4 of the East Pakistan Local Councils (Resignation and Removal of Members and Chairman and suspension of Chairman) Rules. The petitioner in due course showed cause, but the Divisional Commissioner not being satisfied with the same and having found that a prima facie case for his removal had been made out referred the matter to the District Council. The District Council thereafter called a Special Meeting of the representative Members of the District Council as provided in the Basic Democracies Order and the Rules framed thereunder to be held on the 18th July 1961 at 11 a.m. for consideration of the reference made by the Commis sioner and Controlling Authority of the Municipal Committee in regard to the removal of the petitioner. A copy of the Notice of the said Meeting was forwarded to the petitioner "for, information". The petitioner's case is that on the date of the meeting he went to represent his case, but be was told by one of the representative Members that he could not attend the meeting as the meeting could be attended only by the representative Members. It may be mentioned in this connection that the fact that the petitioner went to the meeting and he was told that he could not attend the meeting has been denied in the affidavit in opposition filed on behalf of the respondent, namely, the Divisional Commissioner, Rajshahi. Mr. Birendra Nath Chowdhury who appears for the Petitioner in this case has raised a number of points in support of this rule. In our view, this rule can be disposed of on a consideration of the first point raised. The learned Advocate for the petitioner has contended that on the admitted facts of this case the petitioner has been condemned unheard: It has been pointed out that the District Council did not issue any notice to the petitioner for showing cause against the charges levelled against him. Mr. Mustafa Kamal who appears for the respondent has, however, contended that as under sub‑rule (4) of Rule 6 of the East Pakistan Local Councils (Resignation and Removal of Members/Chairman and suspension of Chairman) Rules, the petitioner had a right to make any representation in connection with his removal for consideration by the District Council and as in this case the petitioner was informed of the meeting called by the District Council the rule underlying the principle audi alteram partem has been satisfied in. this case. It may be mentioned in this connection that in the case of Province of East Pakistan v. Nur Ahmed (P L D 1964 S C 451) the question for consideration before us came up for decision by the Supreme Court. In this case the Supreme Court after referring to its earlier decision in the case of Manzur‑ul‑Haq v. Controlling Authority, Local Councils, Montgomery and others (P L D 1963 S C 652) has pointed out that as under the Basic Democracies Order there is no provision to the contrary, the principle of audi alteram, partem applies in connection with removal of Members under the provisions of the Basic Democracies Order read with the rules referred to already. The question that falls for determination in this case is whether the District Council can be said to have complied with this rule by issuing a notice of the meeting to the petitioner for information and in view of the provisions of rule 6 (4) of the Rules. After having read the decision of the Supreme Court in the two cases referred to above, we are afraid we cannot accept the contention of Mr. Mustafa Kamal. The notice only stated that it was sent to the petitioner for information. It is not necessary for us to determine and this cannot also be done in this proceeding, whether the petitioner actually went to the meeting but was refused admittance. We however feel that it was the duty of the District Council to ask the petitioner to show cause as to the charge against him. If in fact as was the position in the case of Manzur‑ul‑Haq v. Controlling Authority the petitioner had actually gone to the meeting and showed cause, the position would have been different. As, however, that is not the case of the respondent and the District Council did not ask the petitioner to show cause, we are constrained to hold that the decision against the petitioner has been taken in violation of the principles of natural justice. The result, therefore, is that this rule is made absolute and it is declared that the resolution passed in the meeting of the District Council on the 18th July 1964, recommending the removal of the petitioner from Membership of Municipal Committee and from Membership and Chairmanship of the Union Council and the orders of the Commissioner already referred to have been passed without lawful authority. Regard being had to the facts of this case there will be no order as to costs. SALAHUDDIN AHMED, J.‑I fully agree with the order that has just been passed by my learned brother, and the reasons therefore. I, however, wish to add a few words of my own in regard to the principle of audi alteram partem. What seems to me important in regard to this principle is that an actual opportunity should be afforded to the person concerned to show cause why certain orders detrimental to him should not be passed against him: Mere notice to show cause not followed by an actual opportunity to do so is not enough. Upon the affidavits in opposition put in by the respondents in the present case it is difficult to say that any opportunity was given to the petitioner at the meeting of the District Council to show cause against the proposed orders of removal. K. B. A. Rule made absolute.