AYEZUDDIN AHVAD vs THE CONTROLLING AUTHORITY AND SUB DIVISIONAL

1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from a judgment and order of a Division Bench of the High Court of East Pakistan dismissing a petition under Article 95 of the late Constitution filed by the petitioner, Chair--man of the Nimagachi Union Council, to challenge the validity of a resolution of no confidence passed against him on the 25th of July 1969.

2. A number of points were argued before the High Court in support of this petition but none of them found favour with the High Court.

3. The learned Advocate now appearing for the petitioner, how--ever, wishes to raise a new point which does not appear to have been noticed by the High Court. This point was taken in one of the grounds in the writ petition but it is not known if the same was urged before the High Court. In the petition for special leave to appeal also there is no averment that the point was urged but was not noticed by the High Court. In the absence of any such averment we can only proceed on the basis that it was not urged in the High Court and should not as such be allowed to be raised for the first time in this Court.

4. Be that as it may, the point is that since tinder subsection (3) of section 53 of the Electoral College Act it is provided that a member of the electoral college shall cease to be such a member "if he fails to perform without reasonable cause for a continuous period of six months any of his functions as such member under the Constitution or any law for the time being in force", the members of the Union Council who had voted against the peti--tioner had ceased to be members of the Union Council when they cast their votes.

5. This contention is clearly untenable, for, although subsec--tion (3) of section 53 provides such a disqualification, section 54 of the Electoral College Act contemplates that when a member of an electoral college has become disqualified or has ceased under section 53 (3) to be such a member, the Deputy Commissioner of the district within which the electoral unit is situated shall hold an enquiry after giving such member an opportunity of being heard. After the enquiry the Deputy Commissioner shall, if he comes to the finding that the member has become disqualified or has ceased to be a member, forthwith submit a report to the Com--missioner. This decision of the Deputy Commissioner may be challenged by the member concerned. If it is so challenged, then the Commissioner shall refer the matter to the District Judge within whose jurisdiction the electoral unit is situated. The District Judge shall then hear the member and give his decision. Upon receipt of the order of the District Judge the Commissioner shall issue a notification declaring that the member has become disqualified or has ceased to be a member of the electoral college from the date of the notification.

6. If the decision of the Deputy Commissioner is not challenged, even then the Commissioner has to issue under section 54 (3) a notification declaring that the member concerned has ceased to be a member and that a vacancy has occurred in his place from the date of the notification.

7. These provisions of the Electoral College Act themselves clearly indicate that there is no automatic cesser of office. Until the notification is issued, the member continues to be a member. In the present case, it is conceded that no such notification has e as yet been issued by the Commissioner. In the circumstances, there is no substance in the contention that the members who voted against the petitioner, had ceased to be members at the relevant time.

8. Under Article 25 of the Basic Democracies Order, a member of a Local Council has also to be removed by following the pres--cribed procedure. Until such removal takes place, he continues to be a member of the Union Council. So, in any event, the question now sought to be raised, even if it is allowed to be raised, will be of no assistance to the petitioner.

9. Since no other point has been urged before us, we dismiss this petition.