KABIRUDDIN AHMED Versus GOVERNMENT OF EAST PAKISTAN REPRESENTED BY THE SECRETARY
1. SIDDIQI, C. J.‑ This is an application by one Kabiruddin Ahmed challenging the validity of the notification being No. S‑X/IE‑48/65/446 dated 16th August 1965, issued under section: 57 of the Electoral College Act, 1964, regrouping the electoral units in the District of Bakarganj.
2. The case of the petitioner is that he is a member of the Electoral College from Unit No. 323 of Nalchity Town Committee which lies within the district of Barisal. Nalchity Town, according to the petitioner, had a Municipality from as far back as 1875 A. D. until 1960 A. D. with nine Commissioners to re present the interests of the citizens of the town. At the time when the Basic Democracies Order, 1959 came into operation, there were four elected members and two nominated members of the Nalchity Town Committee, and it was, under the said Basic Democracies Order, declared to be a Town Committee. The Municipality was abolished from 1960. After delimitation of the area under the Electoral College Act, two units were created in the town of Nalchity and there was a proposal to extend the area of the Town Committee by including more units from adjacent rural areas to form a Town Committee. In the third week of August 1965, the petitioner came to learn that the respondent No. 1‑the Province of East Pakistan‑purporting to act under section 57 of the Electoral College Act, 1964, issued the impugned notification on the 16th August 1965 abolishing the Nalchity Town Committee and regrouping the two units of the Nalchity Town Committee with Baichundi Union Council No. 7 within the Police Station of Nalchity. According to the petitioner, the regrouping of the two units and tagging those with the Union Council is illegal, mala fide, void and without any lawful authority.
3. The public never demanded the abolition of the Town Committee of Nalchity, and this abolition is in fact against the will of the people. A Press Note was issued by the Government that as far as practicable the areas of the units will not be disturbed in the least which Press Note, according to the petitioner, was published in the Pakistan Observer on the 23rd June 1965. This Press Note, according to the petitioner, lays down the guideline for the respondents in re‑arranging the electoral units without disturbing the character of each one of them, but the impugned notification dated 16th of August 1965, has violated the said principle laid down in the Press Note. The abolition of the Nalchity Town Committee and regrouping of the Two Units of the said Town with the adjacent Union Council of a rural area has caused a great hardship to the people living in the town of Nalchity. It is‑further alleged that the town of Nalchity has not lost its urban character and it conforms to all the requirements of an area to have the status of an urban area and as such the de‑urbanisation of this town is against all principles and the legal sanction.
4. In para. 16 of the petition it is stated that one Gazi Amir Hussain who was a member of the Nalchity Town Committee had, by a Petition No. 446 of 1965 under Article 98 of the Constitution, challenged the re‑grouping of the two units of the Nalchity Town Committee with the Baichundi Union Council as section 57 of the Electoral College Act, under which the re‑grouping was done, was ultra vires of the Constitution. The High Court, in its second judgment, upheld the contention of the petitioner; but on appeal, the Supreme Court, in the case of The Province of East Pakistan v. Sirajul Haq Pativari ( P L D 1966 S C 854 ), held section 57 of the Electoral College Act intra vices of the Constitution, and accordingly all the petitions filed in the High Court and covered by the second decision of the High Court declaring section 57 to be ultra vires were dismissed under authority of this decision of the Supreme Court.
5. After the two units of the Nalchity Town Committee were amalgamated with the neighbouring Baichundi Union Council, the petitioner, who happened to be the Chairman of the Nalchity Town Committee, was asked to hand over charge which gave rise to the cause of action forcing the petitioner to come up with the present petition and obtain the Rule nisi. His prayer for granting stay against the order of handing over charge of the office of the Chairman of the said Town Committee was refus ed by this Court.
6. The respondents filed an affidavit‑in‑opposition which was affirmed by one M. H. Talukdar, Section Officer, Basic Demo cracies and Local Government, Government of East Pakistan, in which it has been contended that the present petition is not maintainable as no new ground has been made out by the petitioner other than what was stated by Gazi Amir Hussain in Writ Petition No. 446 of 1965 which is covered by the decision of the Supreme Court mentioned above. It is asserted in the affidavit‑in‑opposition that the two units of Nalchity Town were amalgamated with the neighbouring Baichundi Union Council because of Nalchity having lost its urban character and the population of Nalchity Town having gone down to 2314 according to the census taken in 1961. The population, it is alleged by the respondents, of the neighbouring Union Councils, is higher in every case than Nalehity Town. It is contended that, because of the loss of the urban character of Nalchity Town and decrease in the population of that town, the Government with the utmost bona fide intention, decided to add the only two units of the Nalchity Town Committee with the neighbouring Baichundi Union Council for better administration and conveni ence of the local people. This was done by the Government as a result of reports obtained, on all the relevant matters to be taken into consideration in delimiting the units, from the local officers up to the rank of the Commissioner of the Division.
7. In the affidavit‑in‑reply, the petitioner has challenged the bona fide nature of the act of the Government in tagging the two units of the Nalchity Town Committee with the neighbour ing Union Council and has asserted that the population of Nalchity Town is 8,000. It has further been stated by the petitioner in his reply that it is not correct to say that the Nalchity Town Committee could not maintain its existence even by adding more units from the adjoining Union Council, or as it is; It has been asserted that the Government is bound by the Press Note issued by it and therefore the notification issued, in contravention of the said Press Note, is bad in law.
8. It is not denied by the respondents that Nalchity had a Municipality of its own but it is admitted on all hands that the said Municipality had been abolished since 1960 and Nalchity was given the status only of a Town Committee under the Basic Democracies Order, 1959 consisting of two units. It is asserted by the respondents that the present population of Nalchity, according to the census of 1961, is 2314, whereas the petitioner's contention is that the population of the town is 8,000 even now. From the judgment of the Supreme Court, in the case of The Province of East Pakistan v. Sirajul Haq Patwari, it is found at page 353 of the report that the Government had laid down certain guidelines for the officers while delimiting the units of the Basic Democracies. From clauses (d) (i) of the said guidelines to be found at page 354 of the report, it is found that the minimum number of electoral units in a group in an urban area shall not be less than four (with a population of 5,000) and the maximum number shall not be ordinarily more than 12 (with a population of 15,000). Clause (d) (ii) of the guidelines states "The existing urban Unions/Towns with less than 4 units or more than 12 units should be so adjusted as to conform to the above standard, as far as possible;". From this it is clear that a Union Committee in an Urban area, must have at least a population of 5,000. Between the two controversial figures given by the petitioner and the respondents, it is safe to rely on the figure given by the respondents which is based on the census report of 1961. The petitioner nowhere has said that the figure that he has given of the population of Nalchity being 8,000 is supported by any official document; nor any reference has been made to the census report of 1961. Thus, it will be found from the two facts, namely, the population of Nalchity Town and the units that it had, namely, two with four representatives, it is clear that Nalchity had lost its urban character to be continued as a Town Committee.
9. The point that arises for our consideration in this Rule upon the facts stated, is as to whether the Government had the authority under the law to delimit the units of the Basic Democracies, and whether it has also the power to tag a unit of an urban area with a rural area which amounts to de‑urbanis ing that unit or the whole area.
10. Section 57 of the Electoral College Act, 1964 gives authority to the Provincial Government to delimit the units of the Basic Democracies. That section having been found to be intra vires of the Constitution, no question can now be raised that the power of delimitation was not in the Government to re‑arrange the units of the Basic Democracies. Under authority of the said section of the Electoral College Act, the two units of the Nalchity Town Committee were attached to Nalchity Baichundi Union Council. We find no want of authority in the Provincial Government to do so. Apart from that, the point having already been raised in the Writ Petition No. 446 of 1965 and having been decided in favour of the Government by the Supreme Court, it cannot be allowed even to be raised now.
11. Now the question is whether Nalchity still retains the character of an urban area and as to whether that character can be changed by the Government. Even according to the guideline which is not contested by the learned Advocate for the petitioner, a Unit of the Basic Democracy, to have the character of a Union or Town Committee, must have a population of at least 5,000. The Nalchity Municipality having already been abolished in 1960, and according to the Government Nalchity having lost its urban character, the Government thought it wise, in the interest of administration, not to continue with the Union or Town Committee in Nalchity with only two units and four representatives and a population of 2314, There is no prohibition in any of the laws for the Government to de‑urbanise an area. According to the learned Advocate‑General, even no notification is necessary to de‑urbanise an area unless that urban area is included within a Municipality. If an urban area lies within the jurisdiction of a Municipality, and if that area has to be de‑urbanised, a notification under section 7 of the Munici pal Ordinance has to be published to take it out of the Municipal limits which automatically de‑urbanises the area. In the case of an urban area which is not within the limits of a Municipality, no notification, according to the learned Advocate‑1 General, to de‑urbanise, it, is necessary. We think the contention of the learned Advocate‑General is correct. Apart from that, in the present case, the crux of the whole thing is whether the Government has the power to tag one unit with another Union Council or Union Committee. Except where it is so done in violation of all principles and in contravention of all practical advantages (as we held in one of the cases heard by a Special Bench of this Court to which I am a party prior to the decision of the second Special Bench which was reversed by the Supreme Court in the case of The Province of East Pakistan v. Sirajul Haq C Patwari) we find ample power in the Provincial Government under section 57 of the Electoral College Act to re‑adjust the Councils and Committees of the Basic Democracies by allotting, the units from one to the other. In the present case, the two units of Nalchity Town Committee were amalgamated with the neighbouring Baichundi Union Council, which is in the same Police Station, for administrative reasons. As such, we find no mala fide in the Government to have done so.
12. The petitioner was aware of the amalgamation of the two units of the Nalchity Town Committee with the Baichundi Union Council as early as third week of August 1965 by the same notification which is impugned before us in this' petition, but he did not challenge that notification at that time. He bided his time to see the result of Writ Petition No. 446 of 1965 filed by his compatriot Gazi Amir Hussain. On this account, too, the petitioner cannot expect any success in this petition.
13. In the context of what we have said above, we find no want of authority in the Provincial Government to have amalgamated the two units of the Nalchity Town Committee with the neigh bouring Baichundi Union Council and/or to have acted illegally or outside the scope of the authority conferred on it by law in any manner whatsoever. There is clear justification for the action of the Government, even from a practical point of view, to have tagged the two units of the Nalchity Town Committee with the Baichundi Union Council, in addition to the legal authority that vests in the Government.
14. In the result, therefore, this application must fail and the Rule issued by this Court is discharged without any order as to costs.
15. ABDUL HAKIM, J. ‑---I agree.
16. A. E./S. A. H. Rule discharged.