P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Abdul Aziz, a resident of Chak No. 99/ 15‑L, Tehsil Khanewal, District Multan, vas appointed a member of Union Council No. 126, Chak No. 109/15‑L, Tehsil Khanewal, District Multan, under Article 21 of the Basic Democracies Order, 1959, (President's Order No. 18 of 1959) by the Collector of Multan District, and was subsequently unanimously elected as the Chairman by the members of that Union Council and became a member of the Tehsil Council, Khanewal. He functioned a Chairman and member of the Union Council and member of the Tehsil Council, Khanewal till the end of August 196 when a notice dated the 30th of August 1960, issued by the Collector Multan acting as the Controlling Authority, was served on him to show cause why he should not be removed from membership of the Basic Democracy under rule 5 of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, and be not disqualified for election or appointment to any Local Council for a period of five years under clause (5) of Article 25 of the Basic Democracies Order, 1959. Abdul Aziz sent a reply but the same not having been considered satisfactory by the Controlling Authority, an order of removal was passed against Abdul Aziz which purported to be under clause (2) of Article 25 of the Basic Democracies Order, 1959. Abdul Aziz has presented this writ petition with a view to having his removal from member ship and Chairmanship of the Local Council and membership of the Tehsil Council being declared null and void.

2. The notice which issued from this Court to the Controlling Authority, Multan, to show cause why the writ petition should not be accepted was not replied to by means of a written statement but Maulvi Mushtaq Hussain, Additional Advocate‑General, West Pakistan, appeared at the hearing of the petition. The defence was that the petitioner had been considered an undesirable person and had for that reason been removed from membership and Chairmanship of Union Council No. 126 of Chak No. 109/15‑L and membership of Tehsil Council, Khanewal, District Multan.

3. The only question that requires determination is whether the impugned order of the Controlling Authority was valid. Removal of members of Local Councils, which expression will cover a Union Council, a Tehsil Council, a District Council or a Divisional Council in the West Pakistan, is governed by Article 25 of the Basic Democracies Order, 1959. The relevant part of this Article reads as under: ‑ "25. (1) Any member of a Local Council may resign his office by tendering his resignation to the Chairman, and if he is the Chairman, to the Controller Authority, and the seat of the member, or the office of Chairman, as the case may be, shall become vacant when the resignation is accepted by the Controll ing Authority. (2) A member of a Local Council shall render himself liable to removal from membership. (a) if he incurs any of the disqualifications specified in Part II of the Second Schedule ; (b) if he, without reasonable cause, absents himself from three consecutive meetings of any Local Council; or (c) if he is guilty of an abuse of power or of any misconduct in the discharge of his duties as a member, or has been res ponsible for any loss or misapplication of any money or property of any Local Council, or any Local Body or other Local Authority. (3) 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 without 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.

4. The notice that was served on the petitioner, and a copy of which is on the record as Annexure A to the writ petition, was in the following terms: ‑ "Whereas there are reasons to believe that you have communist views and you have liaison with the N. A. P. (Defunct) members and further that you were elected as Councillor of the District N. A. P. on 12‑10‑1957 and the Joins Secretary and District Councillor of the said defunct organisa tion on 1‑8‑1958, ft is also learnt that you took an active part in the Anti‑Ahmadiyya agitation and that you held Anti -Government views. You are, therefore, required to show cause within 14 days of receipt of this notice why you should not be removed from the membership of the Basic Democracy under Rule 5 of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, and further you should not be dis qualified for election or appointment to any Local Council for a period of five years under clause (5) of Article 25 of the Basic Democracies Order, 1959." The order of removal is contained in a communication which Malik Karam Dad Khan, Collector, Multan District, acting as the Controlling Authority, sent to the Secretary, Election Authority, West Pakistan, Lahore, a copy of which is on the record as Annexure, C, and reads as under "Abdul Aziz son of Hashmat Ali, a nominated Member of Union Council No. 126, 109/15‑L, Tehsil Khanewal, District Multan, is an undesirable person and has been removed by me under Article 25 (2) of the Basic Democracies Order, 1959. As a result of this removal from the membership of the said Union Council, the office of Chairman of that Union Council, and a seat in the Tehsil Council, Khanewal, have also fallen vacant. It is, therefore, requested that the enclosed draft notifi cation may kindly be published in the Official Gazette at an early date." It cannot escape notice that the notice served on the petitioner to show cause why he should not be removed from membership of the Local Council of which he was a member did not contain any allegation which would make the case fall within clause (2) of Article 25 of the Basic Democracies Order, 1959, and the order of removal does not find the petitioner guilty of any of the things mentioned in the above‑mentioned clause. Learned counsel for the respondent urged that the Order of removal was passed under rule (5) of the West Pakistan Local Council (Resigna tion and Removal of Members) Rules, 1960, (to be referred to in the sequel as the Rules) which were promulgated under Articles 25 and 26 of the Basic Democracies Order, 1959, by the Governor of West Pakistan in exercise of the powers conferred on him by Article 89 of the Order. It may be that the explanation which the petitioner sent to the notice issued by the respondent to show cause against the removal from membership was not considered satisfactory by the Controlling Authority, but that fact alone would not attract the provisions of rule 5 of the above‑mentioned Rules. If one reads the Rules, it becomes clear that they do not say anything in derogation of anything said in the Basic Democracies Order, 1959, and indeed if they said any such thing they would have been ultra vires because no person purporting to make rules under a law can amend the law that gives him the power to make those rules. Rule 4 of the above‑mentioned Rules makes it clear that ft is only for matters mentioned in clause (2) of Article 25 of the Basic Democracies Order, 1959, that action can be taken for removing a member. With regard to removal of persons who are elected members, basic principles are contained in clause (4) of Article 25 of the Basic Democracies Order, 1959, while the provision about the removal of appointed members is contained in clause (3) of Article 25 of the Basic Democracies Order, 1959, which makes it clear that an appointed member can be removed only for the reasons mentioned in clause (2) of the Article. A person may be considered undesirable by the Controlling Authority but that fact alone cannot attract the provisions of clause (2) of Article 25 of the Basic Democracies Order, 1959. Sub‑clause (a) of clause (2) of Article 25 of the Basic Democracies Order, 1959, is to the effect that if a member has incurred any of the dis qualifications mentioned in Part II of the Second Schedule to the Order, he can be removed from membership. Paragraph 2 of Part II of the Second Schedule to the Order gives the reasons which can result in the disqualification of a person for member ship or for being a candidate for membership. None of the six clauses of this paragraph II is attracted if a person is considered undesirable by the Controlling Authority. It is regrettable that the Controlling Authority passed an order of removal without caring to find out on what grounds such an order could be passed. It can hardly be doubted that though the Controlling Authority has wide powers to appoint a member ft has no power to remove the person so appointed unless clause (2) of Article 25 of the Basic Democracies Order, 1959, is applicable to his case.

5. In view of what has been said above, we accept the petition and direct that the impugned order shall not be acted upon, and further direct that the petitioner shall have his costs from the respondent. S. B. Petition accepted.