Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Writ Petition No. 259 of 1960, decided on 17th May 1960.
Art. 25‑Removal of member beyond scope of Art. 25‑Illegal.
Article 25 of the Basic Democracies Order, 1959 being the only provision of law relating to the removal of an appointed member, any action, beyond the scope of this Article, is illegal and without jurisdiction. Once the appointment has been made, the removal of an appointed member must be regulated by the relevant provisions of law.
Where M and F, two duly appointed members of a Union Council were subsequently removed on the only ground that M was a relative of an elected member and that F was a cripple unfit to serve the people of the area for whom he had been appointed and on the further ground that too much representation, in the matter of appointed members, had been given to the abadi for which they were appointed, it was held that the reasons assigned f or removal of the two members were beyond the scope of Article 25 of the Basic Democracies Order, 1959 and their removal, therefore, was illegal and without jurisdiction. It was for the Collector to exercise care at the time of appointing the two members, but once the appointment had been made, their removal was to be regulated by the relevant provisions of law. The order of removal was, therefore, quashed by a writ of certiorari.
Executive instructions issued by Government‑Cannot supersede express provisions of Statute.
Javed Iqbal for Petitioner.
Abdul Rashid for Respondent.
Date of hearing : 17th May 1960.
This order will dispose of two writ petitions, namely, 259 of 1960 and 260 of 1960, which raise a common question regarding the legality of the removal of an appointed member of a Union Council under the Basic Democracies Order, 1959, (President's Order No. 18 of 1959).
2. Writ Petition No. 259 of 1960 is by Iftikhar Ahmad, who was appointed by the Collector of Lyallpur as a member of Union Council No. 202 of Chak No. 248/R.B. His appoint ment was notified in the Government Gazette, dated 15th February 1960 under Notification No. 28‑60/St:-A. On 29th February 1960, he took the oath of office and participated in the proceedings for the election of the Chairman of the Council. It appears that a complaint was, however, lodged against him by some persons, including an ex‑Army Officer named Colonel Siddiq Raja, who were elected members from the same constituency. It was alleged that the petitioner Iftikhar Ahmad was the real brother of an elected member named Sultan Ahmad. A second objection was that dispro portionate representation had been given, in the matter of appointed members, to that part of Chak 248/RB which was known as Bismillahpur, at the expense of the other parts. An enquiry was conducted by the Tehsildar of Lyallpur and on receiving his report, the Collector passed a brief order on the 19th March 1960, which was embodied in a letter addressed to the Tehsildar, simply referring to the recommendation of the Tehsildar and saying that the Collector had been pleased to order the removal of the petitioner and the other appointed member Fateh Muhammad.
3. The second petition before us is by this other member Fateh Muhammad, who similarly belongs to abadi Bismillahpur of Chak 248/RB and whose appointment also was duly notified as a member. , He also took office on 29th of February 1960, and participated in the election of the Council's Chairman the same day. He was also included in the complaint submitted by Colonel Siddiq Raja and others and it was alleged that he was suffering from a physical disability and could not walk about. The other objection against him was the same as against the petitioner Iftikhar Ahmad, namely, that disproportionate representation had been given to abadi Bismillahpur. The enquiry conducted by the Tehsildar of Lyallpur also embraced the case of Fateh Muhammad, and so did the order of removal passed by the Collector.
4. It is clear that the order of removal as communicated through the Tehsildar of Lyallpur does not disclose any reasons, whatsoever, but in the written statements filed on behalf of the Collector, it is disclosed that the removal was ordered for the reason that too much representation had been given to abadi Bismillahpur alone in the matter of appointed members, that Iftikhar Ahmad was a relative of an elected member and that Fateh Muhammad was a cripple and could not serve the people of the area for whom he had been appointed. It would have been appropriate if the Collector had assigned reasons in the order of removal itself. However, we have looked at the reasons now given in the written statements to determine whether the order of removal in each case is within the ambit of law.
5. The appointment of members to the Union Councils is mentioned in Article 21 of Chapter IV of. Part II of the Basic Democracies Order, 1959. Sub‑article (2) of this Article lays down that " in the matter of appointment of members, regard shall be had to the ability of persons to render service to the people, and due consideration shall be given to the representation of minorities and women, all organizations con cerned with the agricultural, industrial or community develop ment, and all other special interests of importance to the local area ".
6. We are entitled to presume that when the two petitioners were appointed as members of the Union Council by the Collector of Lyallpur, the considerations just outlined were borne in mind by the appointing authority. The Collector has mentioned that there are some rules framed under Sub article (2) of Article 21, according to which he has now discovered that the two petitioners were not proper persons to be appointed, but these rules have not been produced before us by the learned counsel appearing for the Collector, with the result that we have not been able to examine the validity of the contentions put forward on behalf of the Collector regarding " the ab initio illegality " of these two appointments. We understand, however, that the learned Collector is referring to some executive instructions issued by the Government which, prima facie, cannot supersede the express provisions contained in Article 21 just mentioned.
7. We find, however, that the question of removal of members is dealt with in article 25 in Chapter V of Part 11 of the Basic Democracies Order, 1959. The relevant portion may be reproduced as follows:‑--
" 25 (2) A member of a local council shall render himself liable to removal from membership -
(a) if he incurrs any of the disqualifications specified in para. 2 of the Second Schedule ;
(b) if he without excuse, absents himself from three conse cutive 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 responsible 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 much 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 on whose approval he was appointed under Article 21 ".
8. We have carefully examined whether the case of either of the petitioners falls within any of the clauses of Article 25 just reproduced. The learned counsel for the Collector frankly concedes that it does not. None of the petitioners has incurred any of the disqualifications specified in para. 2 of the Second Schedule, nor has any of them absented himself from three consecutive meetings of the local council, for the simple reason that three meetings have not so far been held nor is there any allegation that either of them is guilty of an abuse of power or misconduct etc. as is mentioned in clause (c) of Sub‑article (2) of Article 25. Article 25 being only the provision e of law relating to the removal of an appointed member. It is clear that any action, beyond the scope of this Article, is illegal and without jurisdiction. It was for the Collector to exercise care at the time of appointing the two petitioners, but once the appointment has been made, their removal must be regulated by the relevant provisions of law. In the present case the reasons assigned for removal are clearly beyond the scope of Article 25. We, therefore, issue a writ of certiorari quashing the order of removal passed by the Collector in each case. Both the petitions are accepted with costs.
K.B.A. Petitions accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer