Bangladesh Vs. Md. Afzal & ors.

Bangladesh, through the Secretary, Ministry of Local Government, Rural Devel­opment and Co-operatives, Govt. of Bangladesh (Appellant)

Vs.

Md. Afzal & ors. (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ahmed J

M.H.Rahman J

A.T.M Afzal J

Judgment

August 31, 1987.

The Pourashava Ordinance, 1987 (XXVI of 1987)

If any individual elected commissioner or the Chairman himself do come within the mischief of law then the necessary steps can be taken for his removal which is authorised by law. But certainly the Paurashava a corporate body which is elected by direct adult franchise cannot be superseded without giving an opportunity of being heard to the elected commissioners. They must have an opportunity before an action is taken. Section 133 contemplates an enquiry and sub-section (2) the enquiry officer

shall have the powers of the Court under the Code of Civil Procedure 1908 to take evidence and to compel the attendance of witnesses and the production of documents. On the conclusion of such enquiry the next step is given by section 135 which says “if after such inquiry as may be necessary, the Government is of the opinion that (a) Paurashava is unable to discharge or persistently fails in discharging its duties, or (b) is unable to administer its affairs or meet its financial obligations, or (c) generally acts in manner contrary to public interest.” Then the Government can supersede the Paurashava whereupon the Chairman and Commissioner shall cease to hold their office. In this case the Government acted under clause (b), namely, the Pourshava is unable to administer its affairs or meet its financial obligations. The respondents have categorically stated that the special enquiry committee did not make any enquiry worth the name. This was the basis of the main argument in the course of hearing of the writ petition that no enquiry was held in the manner as laid down in section 133 nor the elected representatives were given any opportunity to explain the activities of the Paurashava which had been undertaken by them. The Paurashava is a corporate body and as a juristic person no doubt but it acts through human agencies, namely, through the elected commissioners and the Chairman is also an elected commissioner under section 6(4). On facts, ground was not laid for the exercise of power under section 135 and such exercise tantamount to colourable exercise of power. The High Court Division has correctly declared the impugned order as illegal.………………..(28, 29 & 37)

Cases Referred to-

N.P.T. Co. Ltd. V. N.S.T. Co. Ltd, A.I.R. (SC) 232, State of Maharashtra V. B. K. Takkamorc A.I.R. 1976 (SC) 1353, State of Assam V. Gauhati Municipality A. I. R. 1967 (SC) 1398, Durayappah v. Fervando and others, 1967 (2) The All England Law Reports 152(07).

Lawyers Involved:

M. Nurullah, Attorney-General (Hasan Arif, Deputy Attorney General with him) instructed by B. Hossain, Advocate-on-Record—For the Appellant.

S. R. Pal. Senior Advocate (Zakir Ahmed, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Respondents.

Civil Appeal No. 24 of 1987.

(From the judgment and order dated 9th July, 1987 passed by the High Court Division, Dhaka, in Writ Petition No. 57 of 1987.)

Judgment:

Badrul Haider Chowdhury J.- This ap­peal by special leave is directed against the judgment and order passed by the High Court Division, Dhaka, in Writ Petition No. 57 of 1987.

2. Leave was granted to consider whether before passing an order under section 135(1) of the Pourashava Ordinance, 1977 any notice is required to be served on the elected Commissioner of the Pourashava.

3. Facts are as follows:-Respondents as peti­tioners filed Writ Petition No. 57 of 1987 challeng­ing the legality of the Order dated 6.12.86 passed by the Government, the appellant, superseding Rangpur Pourashava under section 135 of the Pourashava Ordinance, 1977 for 180 days and, further appoint­ment thereof Additional Deputy Commissioner (General) Rangpur under section 135(2)(b) of the Or­dinance to perform all functions of that Pourashava during the period of supersession.

4. The Pourashava election was held on 11.2.84 under the Ordinance for the term 1984-1987 which was subsequently extended upto 1989. Re­spondent No.1 is the elected Chairman and the other respondents are elected Commissioners of the Poura­shava. There are in all 14 elected Commissioners and three nominated women Commissioners. The elected members took oath on 19.3.1984. The Pourashava initiated various projects for development. In appre­ciation of the works done by the Pourashava the Government by order dated 23.9.86 upgraded Rang­pur Pourashava to Class I from Class-II.

5. An enquiry committee was set up by the Government on 10.7.87 to enquire into proper use of fund allotted for development of Rangpur Pourashava during the period of 1984-85 and 1985-86. The said enquiry committee visited Rangpur Pourashava of­fice without giving any notice to the Chairman or the elected Commissioner. This committee submit­ted its report on 18.9.86. Thereafter on 2.11.86 the Chairman, respondent No.1, was served with a copy of the report of the said enquiry committee and to show cause within 15 days as to why action should not be taken under section 135 (1)(b) of the Ordi­nance.

6. Respondent No. 1 submitted a parawise statement and pointed out that the report is not based on the records of the Pourashava and it has taken dis­torted view with malafide intention “obviously to enable the Government to take steps against the pe­titioner No. 1 or the Pourashava.” The Govern­ment, however, issued notification dated 6.12.86 su­perseding the Rangpur Pourashava under section 135(1)(b) of the Rangpur Pourashava Ordinance with immediate effects and appointed the Additional Dep­uty Commissioner to perform all functions of the said Pourashava.

7. The respondent challenged this order of su­persession by filing writ petition. It was canvassed before the High Court Division that the alleged en­quiry was not an enquiry in the eye of law, inas­much as, elected representative’s were not given any notice nor were they heard by the enquiry commit­tee. No evidence was taken by the committee. The three members of the committee simply consulted some files and records of the Pourashava and made their report. The subsequent notice to show cause upon the Chairman as lo why an action should not be taken was mere colourable exercise of power.

8. In the writ petition the respondent chal­lenged the finding of the report in various para­graphs, namely, 7 to 17 and contended that the en­quiry was not enquiry, inasmuch as, neither the Chairman nor any Commissioner was asked any question regarding the materials collected by the committee from the Pourashava Office, and the en­quiry was not held in accordance with the provision of section 133 of the Ordinance.

9. The Government filed an affidavit-in-opposition and in paragraph 6 it was mentioned that though the petitioner undertook some development works “but those were not upto the mark of satisfac­tion of the department as well as of the local peo­ple”. In paragraph 11 it is mentioned that the en­quiry committee was set up “to enquire into the alle­gation brought against him and misappropriation of fund for 1984-85 and 1985-86″ and further it was mentioned” it was found that the petitioner No.1 acted without jurisdiction and misappropriated huge fund.” In paragraph 19 it has mentioned “a series of allegations of corruption, misappropriation and ne­potism were brought against him.” Then the series, of unauthorised expenditures were mentioned in paragraph 19 (a, b, c, d, c) and in paragraph (f) it is mentioned that a criminal case has been started against petitioner No.1.

10. Thus position that emerged that the Gov­ernment was taking action primarily against respon­dent No. 1, the Chairman. But in doing so the Pourashava itself was superseded in exercise of power under section 135 of the Ordinance. It was canvassed before the High Court Division by the Government that it was not at all necessary to serve notice upon the elected commissioners “as it was for the purpose of supersession of Pourashava represented by the Chairman who is executive head and no allegations was made against the Commissioners as such no notice was necessary to be served upon the elected Commissioners”. The contention was repelled by the High Court Division which observed that super­session results in cessation from office. It was ob­served:

“So in any view of the matter it is apparent that when a person loses the office or cease to hold office his interest is affected, as such he is entitled to a notice to show cause for action tak­en against that person.”

The High Court Division then considered the law and found that the submission of the learned Deputy Attorney-General should not be accepted be­cause of the fact “that not only the interest of the Chairman is affected, but also the interest of the Commissioners have also been affected.” Reliance was placed on the decisions reported in 32 DLR 109, 16 DLR (SC) 476 and 22 DLR (Dhaka) 753 and finally the High Court Division took the view that since it is a case of supersession of Pourashava; all the affected persons, namely, the Chairman’s and the elected Commissioners’ interest have been affected and as such all of them were entitled to no­tices before supersession. Finally it was observed:

“In this view of the matter as no notice was served upon the elected Commissioners it is clear violation of the principle of natural jus­tice, as such it is not in accordance with law and it is passed without any lawful authority.”

11. Leave was granted as aforesaid to consider the correctness of the proposition that has found fa­vour with the High Court Division.

12. Mr. M. Nurullah, learned Attorney-General appearing for the appellant, submitted that the prin­ciple of natural justice was in fact followed when the notice was served upon the Chairman to show cause why it will not be superseded and since the Chair­man is the executive head that was sufficient com­pliance of the principle of natural justice. Non-service of notice of enquiry could not vitiate proceed­ing nor will it have any legal effect on the impugned order.

13. The teamed Attorney-General placed his re­liance in number of decisions of the Indian jurisdic­tion. In the case of N.P.T. Co. Ltd. V. N.S.T. Co. Ltd., A.I.R. (SC) 232 it was held that there was no failure of natural justice when the appellate authority had read out the contents of the police report which was meant more for the use of the authority in mak­ing or refusing a grant than for the use of the several applications or any one of them. In other words, it is in the nature of information supplied by the po­lice in order to assist the authority in making up its mind. It was noticed that the parties did not raise any objection to the police report and the question had been raised for the first time before the High Court after the Appellate Tribunal had decided to grant the permit to the appellant. Moreover, the po­lice report did not contain anything which needed to be controverted. This decision does not meet the point that is under consideration in the present case.

14. In the case of State of Maharashtra V. B.K. Takkamorc A.I.R. 1976 (SC) 1353 the State Gov­ernment came to the conclusion from the materials before it that Nagpur Corporation had neglected to undertake an improvement of water supply and to provide a sufficient supply of water for private and public purposes. The Government by an order super­seded the Municipal Corporation of Nagpur by order dated 29.9.65. On 21.7.65 the Government issued notice to the Mayor of the Corporation to show cause why the Corporation should not be superseded. Cause was shown and thereafter the Government passed the impugned order. This was challenged be­fore the High Court. The High Court allowed the writ petition and quashed the order of supersession. The Government appealed to the Supreme Court on certificate granted by the High Court. It was noticed that the Government action was based on two grounds. The first ground was based on the assumption that the Corporation was heading with grave fi­nancial crisis and it would not be in a position even to pay full salaries and wages to their staffs. The Su­preme Court pointed out that the show cause notice did not mention the charge that the councilors planned the expenditure on the basis of uncertain re­ceipts or that they did not exercise proper controls provided by or under the Act. It was observed:

“No opportunity was given to the Corpora­tion to explain the charge. Without giving such an opportunity, the State Government could not lawfully find that the charge was proved.”

On the second ground that the Corporation failed lo undertake the improvement of water supply, the Court noticed that the Corporation could not meet the cost without raising a loan and it could not raise a loan unless it was guaranteed by the Government. In that case the Government imposed three condi­tions, but the Corporation it seems without paying any heed to the conditions imposed by the Govern­ment pressed for guarantee. The explanation of the Corporation was that it neither accepted nor rejected the conditions and the question of accepting the con­ditions was left for future negotiations with the gov­ernment when the government would be approached for the sanction of the loan. The Corporation was thus locked in insoluble controversy which in com­mon parlance may be said which is first-seed or fruit In this back drop the Government look the action and the Supreme Court look the view that though the first ground was not admissible for such action, the second ground, namely, the inability of the Cor­poration for failure lo undertake the improvement of water supply and to provide sufficient supply of wa­ter for public private purposes was enough for the Government to lake action. This decision is though nearer to the problem of the present case but docs not deal with the contention that has been raised in the present case, namely, the elected Commissioners were thrown out of the office because of the im­pugned action of the Government.

15. Next in the case of State of Assam V. Gauhati Municipality A. I. R. 1967 (SC) 1398 the State Government took the view that the Gauhati Munici­pal Board “was incompetent to perform or persistently makes default in the performance of the duties imposed on it” and asked the Municipal Board to give explanation with respect to the charges mentioned in the notice to show cause. The Board gave the expla­nation and thereafter the Government issued a notifi­cation superseding the Board for one year. The Mu­nicipal Board filed a writ petition that (i) the action violated the principle of natural justice (ii) that the charges were found proved in the notification were not the same which were the subject matter of the notice, (iii) that the State Government had already come to the conclusion that the Board should be su­perseded when it gave notice. Therefore, it has pre­judged the issue. The contentions found favour with the High Court and the High Court allowed the writ.

16 On appeal the Supreme Court took the view that the Board had given its full explanation and the question of natural justice did not arise “when the Board never demanded what is called a personal hear­ing and never intimated to the Government that it would like to produce materials in support of its ex­planation at some later stage”. A view has been taken that there has been no violation of the principle of natural justice. This decision also does not answer the point that has been raised before us.

17. Mr. M. Nurullah learned Counsel citing these cases intended to develop the point that prin­ciple of natural justice is to be understood in the context of the relevant law and facts of each case. There is no dispute with this proposition. Now the question is what arc the fact of the present case.

18. Facts in short are as follows:-Respondents are 5 in numbers. Respondent No. 1 was elected as Chairman and the rest are the elected Commission­ers. In the their writ petition the respondents alleged that the Government was inimical to respondent No. 1 for certain political affiliation and respondent Nos. 2 to 5 are his party men. Due to certain political ri­valry some influential persons in the Government intended lo dislodge the respondents, from the Pourashava. Hence the present action.

19. In the affidavit-in-opposition in paragraph 7, the Government admitted that a warrant of arrest was issued against the Chairman at one lime and in paragraph 11 it is mentioned “it was found that the petitioner No. acted without jurisdiction and mis­appropriated huge fund”. In paragraph 19 it was sated that respondent No. 1 indulged himself in corrup­tion in the affairs of the Pourashava. In every affairs of Pourashava he would give favour to his partymen in rampant. The other petitioners are the partymen of petitioner No. 1 Again it is mentioned “a series of allegations of corruption, misappropriation and nepotism were brought against him”. In paragraph 19(a) it is stated “thus the petitioner No. 1 created an excess expenditure of Tk. 1, 33,282/- per month and thereby created burden to the financial position of the Pourashava”. In paragraph (c) it is stated that cer­tain unauthorised works were done by the Chairman and “these works were distributed whimsically through his party men and thereby he misappropriat­ed public money.” It is mentioned in paragraph (F) that a criminal case against respondent No. 1 is pend­ing.

20. These averments show the genuineness of the apprehension that the Government intended to dislodge the respondent No. 1 and his co-party men respondent Nos. 2 to 5 from the Paurashava.

21. The principal question is whether the Gov­ernment was justified in exercising powers under sec­tion 135 of the Paurashava Ordinance and whether the elected Commissioners were entitled to a hearing on the principle Audi-Alteram Partem.

22. It would be useful to take a bird’s eye view of the Paurashava Ordinance 1977 which was prom­ulgated “to provide for the constitution of local gov­ernment institutions in urban areas and to consoli­date and amend certain laws relating to local govern­ment is such areas”. Section 5 says, “there shall be constituted a Paurashava for every municipality.” It shall be a body corporate having perpetual succes­sion and common seal with power subject to the rule which can acquire the whole property and can sue and be sued by its name. Section 6 says about the com­position of Paurashava that it shall consist of a Chairman and certain number of elected Commis­sioners. The Chairman and the elected commission­ers of the Paurashava shall be elected by direct elec­tion on the basis of adult franchise. The Chairman of the Paurashava shall be deemed to be a Commission­er of the Paurashava. The Chairman of the Paurasha­va shall be for a period of five years (section 7). Sec­tion 13 provides that the Chairman or an elected commissioner shall render himself liable to removal from his office if he without reasonable excuse, ab­sents himself from three consecutive meetings of the Paurashava (b) he is convicted for any offence relat­ing to corruption, criminal misconduct or prejudicial or anti-state activity;(c) he refuses to perform or be­comes disabled from performing his functions: or (d) he is guilty of misconduct or is responsible for any loss or misapplication of money or property of the Paurashava. The added explanation to section 13 says, ‘misconduct’ means misuse of power, corrup­tion, jobbery favoritism, nepotism and wilful mal­administration and includes any attempt at, or abet­ment of such misconduct. Sub-section (2) provides that a Chairman or an elected commissioner shall not be removed from his office on any ground men­tioned in clauses (a) and (b) of sub-section (1) unless the prescribed Authority declares with the prior ap­proval of the Government, by an order, that he is li­able to be so removed. But it is provided that no such declaration shall be made unless the Chairman or Commissioner concerned has been given a reason­able opportunity of showing cause against the dec­laration proposed to be made with respect to him.” Sub-section (3) provides that a Chairman or an elect­ed commissioner shall not be removed from his of­fice on any ground mentioned in clauses (c) and (d) of sub-section (1) unless, at a special meeting of the Paurashava called for the purpose in the prescribed manner, a resolution to the effect that he is liable to be so removed is passed by the votes of not less than two thirds of the total number of commission­ers of Paurashava and unless the resolution is ap­proved by the Prescribed Authority.” Here again it is provided that the Chairman or commissioner con­cerned must be given a reasonable opportunity of showing cause against the proposed resolution. Upon such declaration or resolution on the approval by the prescribed authority a Chairman or a Com­missioner shall stand removed and sub-section (5) says, such removed person cannot seek the election during the unexpired period of the term. Section 14 deals with the vacation of the office of the Chairman or a elected commissioner and section 15 lays down the procedure filling casual vacancy. Section 17 au­thorises the panel of Chairman. A panel of three Chairmen shall be elected, in order of preference, by the commissioners from amongst themselves” and “while the office of Chairman is vacant or the Chair- man is on leave or under suspension the function of his office shall be performed by the Commissioner whose name is highest on the panel of Chairman in order of preference.”

23. Chapter III deals with election disputes, chapter IV deals with the functions of Paurashavas, Chapter-V deals with the executive power and con­duct of business and chapter-VI deals with the Paurashava services. The part-Ill deals with financial matters. Chapter-I deals Paurashava fund and proper­ty, chapter II Municipal Taxation, part IV deals with the functions in detail. Chapter I Public health, Chapter II water supply and drainage, chapter III arti­cles of food and drink, chapter IV animals, chapter V Town planning chapter VI Building control, chapters VII Streets and chapter VIII Public safety and chapter IX Trees, parks, gardens and forests, chapter-X educa­tion and culture, chapter-XI social welfare, chapter-XII development and lastly Part-V deals with the General Administration of Paurashavas.

24. This chapter is relevant for the purpose of disposal of this appeal. Section 130 says, that the Government shall exercise general supervision and section 131 is as follows:-

“Control over activities of Paurashavas.- (1) if, in the opinion of the Prescribed Authority anything done or intended to be done by or on behalf of a Paurashava is not in conformity with law, or is in any way against public interest, the Prescribed Authority may, by order-

(a) quash the proceedings;

(b) suspended the execution of any resolu­tion passed or order made by the Paurashava;

(c) prohibit the doing of anything proposed to be done; and

(d) require the Paurashava to take such ac­tion as may be specified.

(2) Where an order under sub-section (1) is made by a Prescribed Authority, the Paurashava concerned may, within thirty days of the receipt of the order, represent against it to the Government, and the Government may either confirm or modify or set aside the order.”

Section 132 enables the Prescribed Authority to give direction to the Paurashava to take a particular action. Section 133 is in the following terms:

“Inquiry into the affairs of Paurashavas.- (1) The Government may, either suo motu or on an application made to it by any person, on an application made to it by any person, cause an enquiry to be made by such officer as may be authorised by it in this behalf, into the affairs of a Paurashava generally, or into any particular matter concerning a Paurashava and take such remedial measures as may be warrant­ed by the findings of such enquiry.

(2) Such officer shall, for the purposes of the enquiry, have the powers of a court under the Code of Civil Procedure, 1908(Act V of 1908) to take evidence and to compel the attendances of witnesses and the production of documents.

(3) The Government may make an order as respects the costs of the enquiry and the parties by whom it shall be paid.

(4) Any amount payable under sub-section (3) by any person, not being a Paurashava, shall be recoverable as a public demand.”

25. Reading these sections 130-133 it becomes clear that system of check and balance has been built in by the law itself, inasmuch as, these local institu­tions arc the pillars of the democratic structures of the society and these local institutions are the foundation of the democracy. Article 9 of the Constitution makes the directive principle of the State for developing and nursing the local Government institutions.

26. The extreme step by way of supersession of Paurashava can be taken in case of extreme necessity when the Government thinks that the foundation for making such order has been well laid. The terms of section 135 are as follows:

Supersession of Paurashavas.- (1) If, after such inquiry as may be necessary, the Govern­ment is of the opinion that a Paurashava.

(a) is unable to discharge, or persistently fails in discharging, its duties, or

(b) is unable to administer its affairs or meet its financial obligations, or

(c) generally acts in a manner contrary to public interest, or (pp 137 to 162)

(d) otherwise exceeds or abuses its powers, ‘the Government may, by notification in the of­ficial Gazette, declare the Paurashava to be su­perseded for such period, not exceeding the resi­due of the term of such Paurashava, as may be specified.

(2) On the publication of notification under sub-section (1)-

(a) the person holding, office as Chairman and commissioners of the Paurashava shall cease to hold office;

(b) all functions of the Paurashava shall, during the period of supersession, be performed by such person or authority as the Government, may appoint in this behalf; and

(c) all funds and property belonging to the Paurashava shall, during the period of superses­sion, vest in the Government.

(3) On the expiry of the period of superses­sion the Paurashava shall be reconstituted in ac­cordance with the provisions of this Ordinance and rules.”

This is the extreme measure that can be taken by way of superseding the Paurashava.

27. If it is the case that individual elected mem­ber or Chairman is acting prejudicially to the interest of the Paurashava the law provides for an action un­der section 13 and section 17 deals with the panel of Chairman when the Chairman is under suspension or his office is vacant. In the given case we have no­ticed above from the Government- affidavit that the grievance is mainly against the Chairman and his partymen who are all five in number. But this Paura­shava consists of 14 elected members and three nom­inated members. Paurashava is itself a corporate body as it has been noticed a corporate body can only be superseded on serious allegation. The Privy Council in Durayappah v. Fervando and others 1967 (2) The All England Law Reports 152(07) ob­served:

“It seems clear to their lordships that it is a most serious charge to allege that the council, entrusted with these very important duties, per­sistently makes default in the performance of any duty or duties imposed on it. No authority is required to support the view that in such cir­cumstances it is plain and obvious that the prin­ciple audi alteram partem must apply”.

28. The legislature enacted the statute setting up the local Government institutions and to quote the Privy Council “with a considerable measure of independence from the central government within de­fined local areas and fields of Government.” Such in­stitutions cannot be dissolved or superseded by whims or caprice. If any individual elected commis­sioner or the Chairman himself does come within the mischief of law then the necessary steps can be tak­en for his removal which is authorised by law. But certainly the Paurashava a corporate body which is elected by direct adult franchise cannot be superseded without giving an opportunity of being heard to the elected commissioners. They must have an opportu­nity before an action is taken. Section 133 contem­plates an enquiry and sub-section (2) the enquiry of­ficer shall have the powers of the Court under the Code of Civil Procedure 1908 to take evidence and to compel the attendance of witnesses and the pro­duction of documents. On the conclusion of such en­quiry the next step is given by section 135 which says “if after such inquiry as may be necessary, the Government is of the opinion that (a) Paurashava is unable to discharge or persistently fails in discharg­ing its duties, or (b) is unable to administer its affairs or meet its financial obligations, or (c) generally acts in manner contrary to public interest.” Then the Government can supersede the Paurashava whereup­on the Chairman and Commissioner shall cease to hold their office. In this case the Government acted under clause (b), namely, the Pourshava is unable to administer its affairs or meet its financial obliga­tions. The respondents have categorically stated that the special enquiry committee did not make any en­quiry worth the name.

29. These three gentle men who are high offi­cials came to the Pourashava office and asked the staffs for files and records without giving any inti­mation to the Chairman or informing the elected commissioners. This has been mentioned in the de­mand notice of justice that was given by their law­yers demanding the cancellation of the impugned or­der (see paragraphs 5 and 6 at page 148 of the pager book). This was the basis of the main argument in the course of hearing of the writ petition that no en­quiry was held in the manner as laid down in section 133 nor the elected representatives were given any opportunity to explain the activities of the Paurashava which had been undertaken by them. The Paurashava is a corporate body and as a juristic person no doubt but it acts through human agencies, namely, through the elected commissioners and the Chairman is also an elected commissioner under section 6(4).

30. The High Court Division noticed the earlier decision reported in 32 DLR 109.

31. Mr.S.R. Pal, learned Counsel appearing for the respondents in course of debate, produced be­fore us the order refusing leave arising out of deci­sion in 32 DLR (Civil Petition no. 233 of 1979). The learned Counsel also placed before us another de­cision of the High Court Division in Writ Petition 580 of 1979 challenging the order of supersession of the Mymensingh Paurashava. In that case only tele­gram was sent that the Joint Secretary will inspect the Paurashava. The Joint Secretary did not ask the petitioner or any of the commissioners regarding the affairs of the Paurashava. Upon the receipt of the en­quiry report by the Joint Secretary, Mymensingh Paurashava was superseded under section 135. This order was challenged. The High Court Division took the view’ “in the circumstances it cannot be said that reasonable opportunity was given to the persons concerned of showing cause during the inquiry. In this view of the matter, we are of the opinion that there has been no inquiry as envisaged under section 133 before the impugned order was passed and as such the impugned order was passed without lawful authority and is of no legal effect.”

32. Leave was sought against that decision but it was refused because the first contention as to the locus standi of the petitioner was neither raised in the High Court Division and on the second point it was noticed that the learned Judges have given co­gent reasons for taking view. (In Civil Petition No. 164 of 1981).

33. In Civil Petition No. 233 of 1979 arising out of the decision in 32 D. L. R. 109 while refus­ing leaves this Court observed:

“When the law lays down that the power can be exercised in a particular manner, it is well settled that no other manner is available for do­ing tie same. Section 133 provides that as to be made. Then section 135 provides “if after such enquiry as may be necessary” the Government can declare Paurashava to be superseded for the period not exceed­ing the residue of the terms of such Paurashava. The High Coon Division has rightly noticed that lie enquiry under section 133 of the Pourashava Ordinance must be held before supersed­ing a Pourashava under section 135 and since it not held the requirement of law was not fulfilled. Consequently the notification was rightly declared as to have been made without lawful authority.”

34. These are the pronouncements of the highest Court of the Republic and the view that had been taken in writ jurisdiction of the High Court Divi­sion is consistent with 3 cases mentioned above which are encash to show that the judicial pro­nouncement lad already been made as to how these local Government, institutions are to be treated and supersession of such local institutions are scrutin­ised strictly keeping in view the law itself for struc­turing the democracy in the Republic. Such an insti­tution must not be treated in the manner or fashion that has been done in the case of Mymensingh Mu­nicipality, in the case of Tongi Municipality and in the present case the Rangpur Municipality.

35. The learned Attorney-General made labori­ous attempt to justify the impugned action by citing instances from the Indian Jurisdiction that Nagpur Municipality was superseded (AIR 1976 S.C. 1353) though the High Court found that the supersession was bad, the Supreme Court considered two grounds, namely, whether the corporation was heading for great financial crisis and the Supreme Court dis­missed this ground because without giving such op­portunity the State Government could not lawfully find that the charge was proved. That on the second ground, namely, that the corporation failed to under­take the improvement of water supply and the Court found why the corporation and the Government was locked in dispute over guarantee for repayment of loan for which the corporation was not in position to raise a loan. The Municipaly needed the loan to improve the water supply, the loan could not be raised unless the Government give assurance of the payment; the’ Government would not guarantee un­less the Nagpur Corporation fulfilled two of its con­ditions. The Corporation would neither do it nor take any other action in such circumstances it was super­seded. On fact it has no application in the present case. “

36. The Gauhati Municipality case the Su­preme Court took the view that the municipality never demanded what is called a personal hearing and never intimated to the Government that it would like 10 produce materials in support of its explanation at some later stage. With respect without expressing any opinion of ours as to the ratio of Gauhati Municipality case this much we can only say that in the present case before us the respondents demanded hear­ing. Mere perusal of the petition and affidavit-in-opposition clearly reveals that the action of the Gov­ernment was mainly directed against the Chairman and the respondents 2 to 5 secondarily. Such action is clearly colourable exercise of power and since the enquiry itself was not one as contemplated by sec­tion 133 the result of such enquiry cannot be founda­tion for taking action under section 135 of the Ordi­nance.

37. Section 131 authorises the Prescribed Au­thority to take remedial measures by quashing the proceedings, or suspending the execution of any res­olution or prohibiting it from taking the proposed action whereupon the Government can confirm or modify or even set aside the order. The learned Attor­ney-General argued that the impugned action was a remedial measure. Clearly this is not correct because the measure taken is in derogation of the constitutional scheme for developing the local institution which is the edifice of democratic structure. The im­pugned action of superseding the municipality clear­ly, in the facts and circumstances tantamount to dislodging the local Government institution. Instead taking such extreme measure the Government could take measures as discussed which would conform to the law itself. On facts, ground was not laid for the exercise of power under section 135 and such exercise tantamount to colourable exercise of pow­er. The High Court Division has correctly declared the impugned order as illegal.

38. In the result, therefore, this appeal is dismissed without any order as to costs.

Ed.

Source: 40 DLR (AD) (1988) 154