ABDUL GAFUR Versus PROVINCE OF EAST PAKISTAN AND 4 OTHERS

1. SIDDIQI, C. J.‑-- In this application under Article 98 of the Constitution, the petitioner who is a Chairman of a Union Council called the Barikandi Union Council No. 19 within P. S. Nabi nagar in the District of Comilla, has prayed for a declaration that the Memo. No. 2034(2) BD, dated 31‑7‑1967, issued by the Controlling Authority of Union Councils at Brahmanbaria, who is respondent No. 2 before us, approving the motion of no-confidence passed by the members of the said Barikandi Union Council against the petitioner. He further prayed for a direction upon the respondents not to interfere With the petitioner's discharge of duties as Chairman of the said Union Council.

2. The case of the petitioner is that he after being elected Chairman of the said Barikandi Union Council sometime in 1965 has been discharging his duties as the Chairman to the satis faction of all concerned but Messrs Maqbool Hussain and Zahoor ul Haq, members of the said Union Council, bore grudge against the petitioner, particularly Zahoor ul Haq, who happened to be the Ex‑Chairman of the said Union Council, became inimical towards the petitioner to the extent that he was intimidating the other members of the Council to side with him to pass a vote of no‑confidence against the petitioner. As a result, five out of eight members of the Union Council by a notice dated 29‑6‑1967 requisitioned a special meeting for the purpose of moving a vote of no‑confidence against the petitioner. The notice was sent to the petitioner by registered post and was received by him on 6‑7‑1967. The notice, according to the petitioner, being vague and frivolous inasmuch as it did not give any grounds in support of the proposed motion of no‑confidence, the petitioner did not consider it necessary to convene the said ‑special meeting. The petitioner having failed to convene the said special meeting as required under the rule, the special meeting of the said Union Council was convened by the Controlling Authority, respondent No. 2 herein; to be held on 27‑7‑67 at 10 a.m., in the Thana Council Hall at Nabinagar for consideration of the said no‑confidence motion. The petitioner came to Nabinagar on 26‑7‑67 and took up his residence in the local Duk Bungalow. The aforesaid Maqbool Hussain and Zahoor ul Haq, members of the Union Council, openly threatened the petitioner and gave out that they would have the no‑confidence motion passed by any means, fair or foul, and in that end in view collected some ruffians who, being armed with lethal weapons, stood guard over some members of the Council who had come to Nabinagar for attending the proposed meeting and threatened them with dire consequences if they would not vote in support of the no‑confidence motion. The desperate conduct of the said two members forced the petitioner to inform the local Circle Officer (Development) who visited him at once and could see and realise that a serious situation of law and order was 'developing and he accordingly made a General Diary Entry in the Nabinagar Police Station on 27‑7‑1967 at 9 a.m., i.e. about an hour before the meeting was scheduled to be held. The police also made 4 General Diary Entry in the Thana to the above effect. The meeting was held at the appointed hour but under a very tense atmosphere created by Zahoor ul Haq and Maqbool Hussain, the prime movers of the no‑confidence motion. The two members of the Union Council who, according to the petitioner, were his supporters, dared not attend the meeting for fear of physical assault on them by Zahoor ul Haq and his men. Six members including the petitioner, attended the meeting. The petitioner for fear of physical assault, abstained from voting and the no‑confidence motion was passed by the vote of five members out of 6 present. The result of the meeting was communicated by the Presiding Officer, i.e. the local Circle Officer (Development) to the Controlling Authority who by his Memo. No. 2034(2) BD dated 31‑7‑1967 approved the proceed ings of the said meeting, or in other words, the passing of the vote of no‑confidence against the petitioner. The petitioner thereafter moved the Additional Deputy Commissioner, Comilla on 31‑7‑1967, and the said Additional Deputy Commissioner called for a report from the Sub‑Divisional Officer, Brahman baria who happens to be the Controlling Authority in this case and stayed further proceedings in the matter. The petitioner continued to hold charge of the office of the Chairman but subsequently the Additional Deputy Commissioner vacated the order of stay which obliged him to come to this Court with .the present petition and obtain the present rule nisi.

3. Mr. Sobhan, learned Advocate for the petitioner contended that the no‑confidence motion alleged to have been passed against his client could not be said to be legal or a proper one because it did not comply with rule 2(2) of the East Pakistan Local Councils (Vote of No‑Confidence) Rules, 1963 (hereinafter called the Rules). Rule 2(2) of the said Rules is in the following term

4. "(2) The requisition which shall briefly set forth the grounds for proposing the vote of no‑confidence shall be addressed to the Chairman, a copy thereof being simultaneously submitted to the Controlling Authority of the Council/Committee con cerned . . . . . ."

5. Mr. Sobhan, learned Advocate, argued that any requisition for convening a special meeting for the purpose of consider ation of a no‑confidence motion against the Chairman must, in terms of rule 2(2) quoted above, briefly set forth the grounds in support of the vote of no‑confidence. In the present case, according to Mr. Sobhan, no such grounds have been set forth in the requisition which can be said to be in conformity with the rule. The two grounds on which the no‑confidence was sought to be present were:

6. "(1) That your activities as Chairman of the said Union are against the interest of the members and public in general.

(2) That your administration has created a terror in the elaqa."

7. According to Mr. Sobhan, both the grounds are vague and indefinite. He submitted that the grounds contemplated by rule 2(2) which should be set forth in the requisition must contain positive indications of the charges against the Chairman which could be understood and answered by him. If it was the intention of the Legislature that the members of the Union Council can, without any reason or according to their whims, bring a vote of no‑confidence against a Chairman whom they do not like, then the Legislature would not have mentioned about the setting forth of the grounds for moving the vote of no -confidence in sub‑rule (2) of rule 2 of the said Rules. Continu ing his argument Mr. Sobhan contended that in the context of the constitutional set up of the different organs of the State under the Constitution of 1962, and the Basic Demo cracies Order, 1959 it could be said that the Legislature in the case of the Union Councils did not want an instable condition to prevail by giving unbriddled power to the members of the Union Council which would enable them to change the Chairman whenever they pleased and on flimsy grounds. In support of this he has referred us to the proviso to Article 25‑A of the Basic Democracies Order, 1959, which contains the provi sions that no motion of no‑confidence against the Chairman or the Vice‑Chairman shall be moved before the expiry of 12 months from the date of assumption of his office as Chairman or Vice‑Chairman or from the date on which an earlier such motion, if any, failed. In other words, Mr. Sobhan's argument has been that to bring stability in the set up of the adminis tration of the country and specially at the lowest tier of it where democratic rights have been conceded to the members of the Council to elect and remove a Chairman by their votes, the Legislature has taken care of curtailing the whimsical acts of the members by introducing the provision in sub‑rule (2) of rule 2 of the Rules for giving grounds for moving the vote of no‑confidence. Although the rules do not say on what grounds a vote of no‑confidence can be moved, yet it demands that those must be legally and morally sustainable and must be briefly set forth in the requisition to afford an opportunity to the Chairman or the Vice‑Chairman to meet the same or in other words, the Legislature intended to curtail the frivolous requisitions for removing a Chairman.

8. Mr. Sobhan further submitted that since by the passing of a vote of no‑confidence by the required majority of members; of the Union Council the Chairman loses his valuable right of continuing in that office and/or is deprived of an elective position he cannot but be given an opportunity to answer the charges upon which the members think that he should be removed. We think that there is substance in the contentions of Mr. Sobhan.

9. Since the motion of no‑confidence, if passed, deprives the Chairman of his right, even under the ordinary principle of law and justice, he should be given an opportunity to answer the charges before the guillotine falls. We feel that with this end in view the Legislature has provided in sub‑rule (2) of rule 2 of the Rules for setting forth, though briefly, the grounds for moving of vote of no‑confidence. The grounds set forth in the requisition, therefore, must be precise and clear to give B sufficient indications to the Chairman as to the reasons for the Chairman's losing the confidence of the members of the Council which forced them to take the step for his removal. The grounds need not be, elaborate but those must be sufficiently clear.

10. In this context if we now scrutinise the two grounds set forth in the requisition dated 29‑6‑1967, what we find is that the ground No. 1, far from being precise and clear, smacks of something for which no‑confidence motion can be proposed. When the members say that the Chairman has been acting against the interest of the members do they mean that he has not been a party to their nefarious activities or do they mean that he has disapproved some of their corrupt or illegal suggestions or do they mean that the Chairman has not allowed free discussions to take place in the meeting of the Union Council and/or free expression of opinion of the members on certain matters? Again the last part of this ground says that the Chairman has acted against the interest of the public in general. It is, in our opinion, too general, vague and wide. No reasonable man with ordinary commonsense would be able to make out anything of this charge. He will not be able to understand how he has acted against the interest of the members or against the public in general unless he has done something flagrant and in gross violation of the ordinary and normal conduct of a public representative. If he had done anything of that sort, then there could be no reason of the members not to mention that specifically.

11. The second ground speaks of terror having been created in the locality by the administration of the petitioner. This ground again, in our opinion, is too vague. Terror may be created by a strict disciplinarian and by honest and hard working Chairman by realising the last penny of the tax and rates without showing any compassion for either the members of the Union Council or for anybody, big or small. Terror may also be created by the Chairman by acting wholly illegally, ruthlessly and capriciously. If, so, then there could be no reason for the requisitionists not to mention specifically any such misdeed of the Chairman in the requisition. Therefore, the mere expression that his administration has created terror in the elaqa does not convey any positive idea as to what the petitioner might have actually done which would call 'for al vote of no‑confidence against him. If he has observed strict discipline in his office and has tried to work hard for the improvement of the locality by constructing roads and digging wells for which he realised every penny of the taxes payable by the residents within his jurisdiction without showing any mercy to the powerful or to the powerless, his action certainly cannot be termed as one which would disqualify him to continue as the Chairman of the Council and/or to give a cause to every member of the Council to propose a vote of no‑confidence against him.

12. The learned Advocate for the respondents Nos. 4 and 5 very feebly attempted to argue that the members of the Union Council can propose a vote of no‑confidence not only on the two grounds in the requisition, however, vague they may be, but also whenever they so please, because they are the masters and they elected the Chairman and they must be allowed to remove him whenever they so please. In our opinion, to curb such whimsical acts of the members the Legis lature has thought fit to incorporate in Article 25‑A of the Basic Democracies Order the bar of 12 months and in rule 2(2) the provision for giving grounds in regard to the motion of no‑confidence. The contention of the learned Advocate for the respondents Nos. 4 and 5 is, therefore, contrary to the provisions of the Order and the Rules as we see them.

13. We are, therefore, of the opinion that in a requisition for no confidence motion against a Chairman or a Vice-Chairman of the Union Committee or Union Council, grounds as contem plated by sub‑rule (2) of rule 2 of the Rules must be set forth precisely and clearly, though briefly, to give notice to the Chairman or the Vice‑Chairman, as the case may be, so that he can defend himself either before or at the time the meeting is held and also to provide an opportunity to the Controlling Authority, when the Chairman refuses to convene the special meeting, for consideration of the no‑confidence motion and also to consider as to whether the grounds are frivolous or genuine or as to whether it is out of malice or caprice that the motion is proposed. We understand that the rules today stand changed with regard to the convening of the special meeting for consideration of a vote of no‑confidence in the manner that no more a notice is to be sent by the members for the purpose to the Chairman of the Council but it has to be sent directly to the Controlling Authority. We feel that this change in the rule has been made by the Legislature to afford an opportunity to the Controlling Authority, who is a responsible officer of the State to decide whether the requisition is worth consideration and that seems to be consistent with the provi sions of Article 25‑A of the Order and rule 2(2) of the Rules.

14. The learned Advocate for the Province of East Pakistan has very briefly submitted that the grounds mentioned in the requisition do not conform to sub‑rule (2) of rule 2 of the Rules. They are vague and unintelligible. The grounds according to him also, must be precise, clear and unambiguous and must provide for an opportunity to the Chairman or the Vice‑Chairman against whom the motion is sought to be moved to understand the reasons for the members taking the drastic step against him and also to enable him to put up a genuine defence, and we think he is right.

15. Considered in the context of what we have said above we find that the two grounds mentioned in the requisition dated 29‑6‑1967 sent by the five members of the Council were not proper grounds in compliance with the Rules and, therefore, the requisition itself in this case is bad in law and, as such, the meeting held pursuant to this requisition cannot be said to be a valid one. Therefore, the no‑confidence motion passed in the l meeting of the 27th July 1967, against the petitioner is bad in law and has no legal effect. We accordingly declare the Memo. No. 2034(2) BD, dated 31‑7‑1967, issued by the Sub-Divisional Officer and the Controlling Authority, Brahman baria to be illegal and without any lawful authority.

16. The application, therefore, succeeds and the Rule is made absolute but without any order as to costs.

17. ABDUL HAKIM, J. --‑I agree.

18. Rule made absolute.