P L D 1964 Dacca 217 (PLP)

A. S. CHOWDHURY, J.‑The petitioner challenges an order removing him from membership of the Bahuria Union Council constituted under the Basic Democracies Order, 1959 (hereinafter called the order).

2. The petitioner was appointed a member of the said Council by respondent No. 3, the Sub‑Divisional Officer, Tangail, with the approval of the Collector, Mymensingh, and he was thereafter elected as its Chairman on the 2nd of March, 1960. It is further stated by the petitioner that before introduction of Basic Democracies, he was President of the Local Union Board for about twenty‑five years. When he was continuing as Chairman of the said Council, the petitioner was surprised to receive a notice from respondent No. 3 asking him to resign from membership of the said Council on the vague allegation of his not being able to control some of the influential members of the Council. The petitioner ascertained the views of the Council at a meeting in which, by a resolution adopted by 13 to 5 members, the Sub -Divisional Officer was requested to allow the petitioner to continue as Chairman. The petitioner, therefore, refused to comply with a mandatory direction of this nature. He was subsequently served with a notice to show cause why he should not be removed. That notice contained several allegations as will be seen later.

3. On the 25th of August 1961, the petitioner submitted an explanation as directed in the so‑called show‑cause notice. On the 1st of September 1961, respondent No. 3, the Sub‑Divisional Officer, made an order removing him from membership of the said Union Council. He also made a further order that ‑ he should not be eligible for election for two years from that date.

4. Thereafter the petitioner moved the Divisional Com missioner who found the order to be illegal but failed to give any relief to the petitioner owing to absence of any provision in the Order for an appeal before him.

5. The petitioner then moved this Court and obtained the present Rule.

6. There is no return to this Rule and no affidavit‑in- opposition has been filed on behalf of the respondents. There being no affidavit‑in‑opposition, the statements made in the petition stand unchallenged. The averments made in the petition bear the imprint of truth and we have no hesitation in accepting the same as correct.

7. Mr. Akhtaruddin Ahmed, learned counsel for the peti tioner, submits that the impugned order is absolutely illegal and void inasmuch as respondent No. 3, the Sub‑Divisional Officer, who is the Controlling Authority, had no jurisdiction to make the impugned order without prior consultation with and approval of the Collector.

8. Article 25 (3) of the Order is in the following terms: "The Controlling Authority may, after such enquiry, if any, as may be considered necessary, remove any appointed member of a Local Council, who is liable to removal under this Article, from such membership: Provided that no appointed member shall be removed with out consultation with, or without the previous approval in writing of the authority in consultation with whom or with whose approval he was appointed under Article 21."

9. Article 21 (a) (1) of the Order provides that a member of a Union Council in East Pakistan will be appointed by the Sub‑Divisional Officer with the previous approval in writing of the Collector. It is, therefore, clear that in removing a member of a Union Council also it is incumbent on the Controlling Authority namely, the Sub‑Divisional Officer, to have prior con sultation with or written approval of the Collector before he makes an order for removal.

10. In paragraph 25 of the petition it has been stated as follows: "That the S. D. O. did not obtain the prior approval of the Deputy Commissioner, Mymensingh, for the removal of the petitioner." We have no hesitation in accepting this statement.

11. Moreover, the impugned order itself show that the Sub- Divisional Officer did not obtain prior approval of the Collector. After having made the order of removal he says therein "Write to D. C. (M) for approval."

12. The Commissioner, who heard the appeal, stated as follows: "It appears that the S. D. O. passed orders for removal of the Chairman on 1‑9‑61 and that he wrote to the D. C. Mymen singh on 8‑9‑61, i.e., about a week after he had passed the order of removal for the approval of the D. C. Article 25 (3) appear to provide that no appointed member should be removed with out previous approval of the D. C."

13. Proviso to Article 25 (3) of the Order imposes a embargo on the removal of an appointed member without the prior approval of the Collector and the same not having obtained prior to the making of the impugned order, it has been made without jurisdiction. Owing to non‑compliance with this mandatory provision of law, we hold the same to be illegal and of no effect whatsoever.

14. The next point urged by the learned counsel that the notice asking the petitioner to show cause against his removal issued on 17‑7‑61 contains allegations which are vague and indefinite and it was, therefore, not possible for the petitioner to make comments on the same and as such no valid show‑cause police was served on him at all.

15. The said so‑called notice is admitted to have been received on 27‑7‑61 and the same is set out below: "'To Mr. Lakhu Sarkar, Chairman, Bahuria Union Council, P. S., Mirzapur. It is reported by the Circle Officer, Jamurki that you in spite of order by him to hold office and meetings of the Union Council in the permanent office, removed all furniture and papers to your own house and started calling meetings there. And that you calling a meeting of the Union Council in the permanent office on 19‑5‑60 did not attend the same. And that some informations regarding your passed activities have made him seriously doubtful about your honesty and integrity ; You are therefore directed to show cause within 14 days of the receipt of this notice why you should not be removed from both membership and Chairman of the Bahuria Union Council under rule 4 (1) of the East Pakistan Local Council (Removal of Members) Rules, 1960. (Sd.) Illegible. For Sub‑Divisional Office, Tangail, 17‑7‑60."

16. In reply to the allegation of his removal of furniture and papers the petitioner categorically asserted that the permanent office of the Council was in a Kutchaghar which was considered unsafe for keeping papers. Since objection has been taken, papers were now being kept in the office. Removal of furniture was com pletely denied. The petitioner has reiterated his statements as aforesaid. Regarding calling of meeting at his house, he stated that owing to his illness only one meeting was held at his residence in order to take immediate action in some urgent matters. We must say that the Chairman is the person who is responsible for the safe custody of the papers and properties of the Council. This cannot be any round for removal of the petitioner.

17. Removal of furniture has been denied and we see no reason to disbelieve the petitioner as already stated above. It is to be noticed in this connection that there is no allegation to the effect that he made personal use .of the furniture of the Council.

18. With regard to calling of the meetings, we must said that the Chairman has the right to convence meetings at places considered by him to be suitable and in these matters he impliedly acted subject to the ultimate authority of the Council and there is nothing before us indicating disapproval by the Council of the action of the Chairman or requiring him to call a meeting at a particular place.

19. Another allegation contained in the show‑cause notice is that he did not attend a meeting of the Union Council on 19‑5‑

60. We are surprised to see that on such a ground a Chairman can be asked to show cause why he should not be removed, specially when the law provides that a member cannot be removed unless he absents himself from three consecutive meetings. Therefore, to ask him to show cause for not attending a solitary meeting is contrary to law.

20. The contention of the learned counsel regarding the vagueness of notice fully applies to allegation to the effect that the information regarding the past activities of the petitioner, made the Circle Officer doubtful about his honesty and integrity. It is clear that the notice in this respect is vague and we must also say that respondent No. 3, has designed it in such a way that the petitioner has been prevented from giving an explanation thereto. This we consider as denying him a reasonable opportunity of showing cause against his removal. Notice contemplated under Rule 4 of the East Pakistan Local Councils (Resignation and Removal of Member) Rules, 1960 does not mean that a notice should be served on a member as a mere formality. It is indeed reasonable to hold that the notice should give him such definite informations as may be necessary to enable him to give an expla nation about the charges against him. He is not given what may be considered a reasonable opportunity of meeting the accusations made against him. In any event, as clearly indicated, the show cause notice was incapable of being answered in writing.

21. We are, therefore, satisfied that this show‑cause notice does not satisfy requirement of law for giving reasonable opport unity of showing cause to a member who is sought to be removed from the Union Council and as such the impugned order made without a valid show‑cause notice, is illegal.

22. The order of removal as made by respondent No. 3 is in the following terms :‑-- "Seen cause shown by C. U. C. Bahuria U. C. Cause shown unsatisfactory. He is removed from membership of Bahuria U. C. with immediate effect and shall not be eligible for re‑election of that U. C. for two years from date. Writ of D. C. (M) for approval. Issue necessary notification in the official Gazette. (Sd.) M. Murshed, 1‑9‑61. " Respondent No. 3 decides the case in three words. "Cause shown unsatisfactory" (underlined by me)." He does not give any indication whatsoever as to why the cause shown is unsatisfactory, specially when he applies the guillotine on the petitioner without furnishing him reasonable opportunity of showing cause on a very vital point. The order, as quoted above, shows non‑application of his mind, although by this order he was depriving the petitioner of a valuable right, namely, a right to membership of a Union Council. The petitioner has not only been removed from his present membership but he has also been debarred from future membership for a period of two years and the order which imposes such a disqualification upon him, discloses arbitrary exercise of a power vested in respondent No. 3, the Sub- Divisional Officer, and, in that sense, not passed in good faith at all.

23. For reasons stated above, we make the Rule absolute and direct the respondent No. 3, the Sub‑Divisional Officer, Tangail, to cancel the impugned order made on the 1st of September 1961, and to forbear from giving effect to the same.

24. The petitioner is entitled to his costs of this application, which we assess at three Gold Mohurs. MURSHED, J.‑I agree S. Q./K. B. A. Rule made absolute.