P L D 1965 Dacca 330 (PLP)

A. M. SAYEM, J.‑--This Rule at the instance of Md. Sadeque, a permanent resident of village Sarail within Union No. 7, in the District of Comilla, was issued on 13th November 1963, calling upon the respondent Syed Rafiq Ali to show under what authority of law he claims to hold the offices of Chairman and Member of the said Union Council. Subsequently, the Comilla District Council before whom a requisition by the Controlling Authority for calling h special meeting for considering the removal of the said respondent from the said offices was pend ing was added as party respondent to the Rule. The added respondent, namely, the Comilla District Council did not enter appearance, and it was only the original respondent, Syed Rafiq Ali, who contested the Rule. It has been alleged in the petition, upon which this rule was issued, that on the date of his election to the Union Council as a member the contesting respondent was disqualified for being a candidate for such membership under Article 5 (1) (a) of the Elective Bodies (Disqualification) Order, 1959, and that as such his election was ab initio void. The following facts are not in dispute between the parties. The contesting respondent who was a clerk in the office of the Sub‑Registrar of Brabminbaria was dismissed from service upon the recommendations of the Screening Committee on 1‑4‑

59. He was elected as member of the Union Council on 31‑12‑59, and thereafter he was elected Chairman of the said Union Council on the 23rd February 1960. He stood for election to the Provincial Assembly in April 1962, and his nomination paper was rejected by the Returning Officer during scrutiny on 5‑4‑

62. He then moved the Election Commissioner against the said order of rejection of the nomination paper. His petition was rejected by the Election Commissioner on 17‑6‑

62. In the meanwhile, on 7‑6‑62 the Controlling Authority of the Union Council requisitioned a special meeting of the Comilla District Council under Article 25(4) of the Basic Democracies Order, 1959 for considering the removal of the contesting respondent from the membership and Chairmanship of the said Union Council. The District Council took no steps on the said requisition by the Controlling Authority for a long time, and while the said requisition was thus kept pending by the District Council the petitioner obtained this Rule on 13th November 1963. It was long after the issuance of this Rule and also after service of notice on the District Council, after they were added as party respondent on 4‑5‑64, that on 30‑1‑64 the latter passed a resolution refusing to remove the contesting respondent from the said offices of member and Chairman of the Union Council. The petitioner claims that the contesting respondent was dismissed from Government service for misconduct, while the latter's case is he was not dismissed for misconduct but for unsatisfactory service. In support of his case the contesting respondent has filed a copy of the notice that was served on him, as per direction of the Screening Committee, to show cause why disciplinary action should not be taken against him for `unsatisfactory service'. He also filed a copy of the dismissal order dated the 1st of April 1959, which said in compliance with the decision of the Screening Committee, Tippera, he was dismissed from Government service with immediate effect. It was contended before us on behalf of the petitioner that `unsatisfactory service' is wide enough not to exclude misconduct. Be that as it may, it has been stated in the petition that the respondent's nomination paper for election to the Provincial Assembly was rejected on the ground that he was dismissed from service on the ground of misconduct, and also that the Election Commissioner found, on perusal of the records sent to him by the Deputy Commissioner of Comilla and the Inspector‑General of Registration, that the respondent's dismissal was due to misconduct. The petitioner has also worn to say that the respondent's name appears in a Govern ment publication entitled "List of persons who stand disqualified under Article 5 (1) (a) of the Elective Bodies (Disqualification) Order, 1959" of the Chittagong Division, and that his name appears under serial No. 393 of the volume. The petitioner has also filed a copy of the order of the Election Commissioner dated 17‑4‑62, in which it has been found that the respondent was dismissed from service for misconduct. These facts could not be challenged on behalf of the respondent. There can, therefore, be no doubt that the respondent having been dismissed from Government service for misconduct on 1‑4‑59, he was disqualified from seeking election to the Union Council on 31‑12‑

59. Being faced with this position the learned Advocate appearing for the contesting respondent sought to resist the Rule on the following grounds: (i) The petitioner has no locus standi to move this Court, as he is neither a voter nor a tax‑payer in the Union. (ii) The Returning Officer having found him qualified for election to the Union Council, on a proper scrutiny of the nomination paper, and he being duly elected to the Union Council by the voters, the petitioner should not be allowed to challenge the said election at this late stage. (iii) The District Council having refused to remove the respondent, although a requisition in that behalf was made by the Controlling Authority, this Court should not interfere at the instance of the petitioner. (iv) The respondent's disqualifications under Article 25(2) read with paragraph 2 (f) of the Second Schedule of the Basic Democracies Order, 1959 (arising out of Article 5 (b) of the Elective Bodies (Disqualification) Order, 1959) having come to an end by virtue of section 53 (2) (b) of the Electorate College Act, 1964 (Act IV of 1964), the rule has become infructuous, as at the time of the hearing of the rule the period of 5 years from the date of the dismissal had expired. As to the first ground of objection to the Rule, namely, that of locus standi of the petitioner, it will suffice to refer to sub‑clause (b) of clause (2) of Article 98 of the Constitution which is in the following terms: "(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law . . . . . (b) on the application of any person, make an order . . . . . (ii) requiring a person in the Province holding or purporting to hold a public office to show under what authority of law the claims to hold that office." It will appear from the text of Article, quoted above, that for the purpose of a writ of the nature of quo warrant any person is entitled to move this Court. The applicant need not be an aggrieved party, as he is needed to be if relief is sought under sub‑clause (a) of clause 2 of Article 98 of the Constitution. We do not also find any substance in the second and the third grounds of objection to the Rule, namely, that the respondent's continuance in office should not be allowed to be questioned at this stage by the petitioner, in view of the District Council's refusal to remove him, although requisition to that effect was made by the Controlling Authority. The passing of his nomination paper by the Returning Officer and the refusal of the District Council to remove him can be of no avail to the respondent. He was dismissed from Government service for misconduct, as we have already found. There can, therefore, be no doubt that at the time of election he stood disqualified and so his election being void ab initio his continuance in office can be questioned at any stage. The next ground that in view of section 53 (2) (b) of the Electorate College Act, 1964, his disqualification at the moment had come to an end, being more than five years from the day of his dismissal, it can be pointed out that the Rule was issued at a time within the said period of 5 years, and further,' that the very same reason for which we have rejected the second and the third grounds of objection is evidently available to the petitioner. As to the question of delay, the petitioner has sworn to say that he was not aware of the respondent's disqualification till sometime after it was rumoured in the village that the respondent's nomination paper for election to the Provincial Assembly bad been rejected by the Returning Officer. The Controlling Authority requisitioned special meeting of the District Council for considering the question of removal of the respondent, but the District Council set over the matter. Finding no other way, the petitioner moved this Court, and obtained this Rule on the 13th November 1963. It was long after this date that the District Council passed the resolution refusing to remove the respondent. No question of delay, in our opinion, arises in this case. Nor can delay be of any consequence in a petition for a writ of the nature of quo warranto in relation to an office entered upon on the basis of a void election. We have already held that the respondent's election to the Council was void ab initio. There is thus no substance in any of the objections raised by the respondent in resisting the Rule. The Rule is accordingly made absolute. It is declared that respondent Syed Rafiq Ali is holding the office of Chairman and Member of Union Council No. 7 of Comilla District without any legal authority. The contesting respondent is directed to pay the costs of hearing of this Rule to the petitioner, which is assessed at five gold mohurs. A. SATTAR, J.‑

I agree. K. B. A. Rule made absolute.