P L D 1966 Dacca 129 (PLP)

A. SATTAR, J.‑The petitioner, Abdul Hamid, who is an elected member of Jamalpur North Union Committee, has obtained this rule on the respondents, namely, (1) The Secretary, Basic Democracies Local Government Department, (2) The Sub Divisional Officer, Jamalpur, and (3) Mirza Ashrafuddin Hyder, to show cause why the order of the Department of Basic Democracies Local Government, communicated to respondent No. 2 by telegram No. S‑lII/IV‑8/64/926 dated the 6th July 1964 and the order of respondent No. 2 dated the 7th July 1964 staying the Special Meeting of Jamalpur North Union Committee scheduled to be held on the 20th July 1964, should not be declared to have been issued without any lawful authority. The facts of this case which are not in dispute and are relevant for the purpose of disposal of the points raised may be shortly stated as follows: Respondent No. 3 Mirza Ashrafuddin Hyder was elected Chairman of the Union Committee by the members of the said Committee in 1960. On 22‑8‑63, three members of the said Committee, namely, the petitioner, Shujauddin Ahmed and Noor Muhammad, submitted a requisition to respondent No. 3 for convening a Special Meeting to discuss a vote of co‑confidence against respondent No.

3. As the meeting was not convened by respondent No. 3 within the time allowed under the East Pakistan Local Councils (Vote of No‑Confidence) Rules, 1963, the respondent No. 2, the Sub‑Divisional Officer, who is the Controlling Authority, issued a notice on the 23rd September 1963, by which he called a Special Meeting of the Councillors of Jamalpur North Union Committee to be held on the 4th October 1963 at 10 a.m. After the said notice was issued respondent No. 3, Chairman, filed a suit in the Court of the First Munsif at Jamalpur being O. C. Suit No. 78 of 1963 for a declaration that the Special Meeting convened by respondent No. 2 to be held on 4th October at 10 a.m. was illegal, invalid and void ab initio. Respondent No. 3 also obtained an ad interim injunction restraining respondent No. 2 and the petitioner and other members of the Committee from holding the said meeting till the disposal of the suit. The injunction however was vacated later on and the respondent No. 2 filed appeal against that order which was dismissed. His revisional application against the order vacating the injunction in this Court also was unsuccessful. After the rule obtained in this Court under section 115, of the Code of Civil Procedure against the order vacating injunction was discharged, respondent No. 2 again issued a notice on the 2nd July 1964, by which he called a special meeting of the Union Committee to be held at 4‑30 p.m. on the 20th July 1964. Thereafter, respondent No. 2 received an order from the Basic Democracies Local Government Department, Government of East Pakistan, by the impugned telegram in which he was asked to stay the special meeting scheduled to be held on the 20th July 1964. It is after this that the respondent No. 2 passed an order staying the special meeting called by him. The petitioner has challenged the right of the Provincial Government to direct the respondent No. 2 to stay the meeting called by him under the provisions of the East Pakistan Local Councils (Vote of No‑Confidence) Rules, 1963. He has further challenged the right of the respondent No. 2 to stay the meeting after the meeting had been convened by him. In this case an affidavit‑in‑opposition on behalf of the first two respondents has been filed and this affidavit has been affirmed by Mr. Abdul Mannan Chowdhury, Section Officer, Government of East Pakistan. In this affidavit, .the stand taken by the first two respondents is that, as the question of removing three members of the Committee in question was pending before the Government, the Government on an application filed by respondent No. 3.stayed the proceedings of the meeting called by respondent No.

2. Mirza Ashrafuddin Hyder, the Chairman, has also filed an affidavit. In this affidavit it has been asserted that after the notice dated the 2nd July 1964, for holding a special meeting to pass a vote of no‑confidence against him was issued by respondent No. 2 the deponent filed a petition before the Secretary, Basic Democracies; Government of East Pakistan with a prayer that the S. D. O., Jamalpur be directed not to hold a special meeting to move no‑confidence against the deponent till the Government arrived at a decision with respect to the cases against three members of the Union Committee for their removal. The deponent has then stated that as against Mr. Shujauddin Ahmed, one of the members, there were various allegations from the public and the S. D. C.; Jamalpur had these allegations enquired into by a Magistrate, 1st Class, who found that the said member was guilty to those charges. The S. D. O., Jamalpur, on the basis of the report of the enquiry held sent the case to the Deputy Commissioner, Mymensingh with recommendation for the removal of that member. The Deputy Commissioner in his turn referred the matter to the Commissioner, Dacca Division with recommendation for removal of the said member. The Commissioner thereafter duly referred the matter, to the Government on the 27th of February 1964, for necessary orders. The deponent has then stated that Mr. Abdul Hamid and Mr. Noor Mohamud had incurred disqualification in accordance with Article 25(2) of the Basic Democracies Order on account of their wilful absence from three consecutive meetings of the said Union Committee, and as such they were liable to be removed from membership. The matter was pending before the Additional Deputy Commissioner, Mymensingh. The first point that has been urged by Mr. B. N. Chowdhury on behalf of the petitioner is that the direction given by the Provincial Government in the telegram already referred to and the order passed by the S. D. O. staying the proceedings of the Special Meeting called under the provisions of rule 2(3)(ii) were absolutely without jurisdiction. To support the direction given by the Provincial Government, Mr. Moazzam Hossain who appears for the first two respondents has drawn our attention to the provisions of Articles 73 and 76 of the Basic Democracies Order. Article 73 provides that Government shall exercise general supervision and control over the Local Councils in order to ensure that their activities conform to the purposes of this Order. Article 76 empowers the Provincial Government either suo motu or on application made to it by any person to cause an enquiry to be made by an officer into the affairs of a local council generally or into any particular matter concerning a local council. It is very difficult to understand how these general provisions of the Basic Democracies Order can override the provisions contained in Article 12(5‑A) of the said Order. Article 12(5‑A) of the Basic Democracies Order lays down that a Chairman or a Vice Chairman of Union Council or a Town or Union Committee shall vacate the office if a vote of no‑confidence is passed against him by a majority of two‑thirds of the total number of existing members in the prescribed manner. This provision empowers the members of a committee to remove a Chairman if a vote of no‑confidence is passed by two‑thirds of their number. In this view of the matter, the general power contained with regard to supervision and enquiry in Articles 73 and 76 cannot be invoked to negative the right of the members of a Committee to remove a Chairman by passing a vote of no confidence provided the vote of no‑confidence is supported by two thirds of the members of the Committee. We, therefore, do not think that these provisions empowered the Provincial Government to give the direction given in the impugned telegram. Similarly, we do not find any authority to stay the proceedings of a meeting convened by him under the East Pakistan Local Councils (Vote of No‑Confidence) Rules, 1963. Mr. Ruhul Islam who appears for the respondent No. 3 has firstly tried to justify the direction given by the Provincial Government with reference to the provisions of Articles 73 and 76 of the Basic Democracies Order. We have already found that those Articles do not give any power, which has been exercised in the‑present case by the Provincial Government. Learned Advocate then has drawn our attention to the proviso to rule 2(3) of the East Pakistan Local Councils (Vote of No‑Confidence) Rules. The relevant portion of the sub‑rule reads as follows:‑ "(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: Provided that Government may extend the tine of holding special meeting by the Controlling Authority." It has been argued that under the above proviso the Provincial Government could extend the time of holding the special meeting and therefore the order passed by the Provincial Government is in accordance with this proviso. The Provincial Government the order clearly indicates, did not extend the time of holding the special meeting. On the contrary, the Provincial Government stepped the meeting which was convened by the Controlling Authority under the provisions of clause (ii) of sub‑rule (3). It is therefore not a case of extending the time of holding the meeting on the failure of the Controlling Authority. In this case it is not for us to go into the question whether a meeting convened by the Controlling Authority beyond the time prescribed in clause (ii) of sub‑rule (3) of rule 2 is within his jurisdiction because it is nobody's case that the Government intervened as the meeting was convened beyond the period within which it could be convened by the Controlling Authority. The case made out by respondent No. 3 in the affidavit‑in-opposition, as we have already seen, was that he thought that pending the decision with regard to the removal of three members of ‑the Union Committee in question the meeting could be stopped by the Provincial Government. We have found no authority for such a proposition in the Basic Democracies Order or the rules framed thereunder. In this view of the matter, we feel that the orders in question were passed without jurisdiction. The rule, therefore, is made absolute and it is declared that the order passed by the Provincial Government and communicated by telegram No. S‑III/IV‑8/64/926 dated 6‑7‑64 and the order dated 7‑7‑64 passed by respondent No. 2 pursuant to the said direction stopping the holding of the meeting were passed without jurisdiction and as such are of no legal effect. The petitioner will get the costs of this application which we assess at ten Gold Mohurs to be paid by the two sets of contesting respondents equally. SIKANDAR ALI, J.‑I agree. K. B. A. Rule made absolute.