Case No: Civil Appeal No. 1 of 1989
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Abdul Wadud Bhuiyan,Md. Serajul Huq,,
Citation: 41 DLR (AD) (1989) 116
Case Year: 1989
Appellant: Abdul Mannan Bhuiyan
Respondent: Monirul Huq
Subject: Election Matter,
Delivery Date: 1989-2-5
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Abdul Mannan Bhuiyan & Others
……………….Appellants (In Civil Appeal No. 1 of 1989.)
Bangladesh and others
…..................... Petitioners (In C.P. No. 310 of 1988)
Monirul Huq and others
………………Respondents (In Civil Appeal No. 1 of 1989).
Monirul Huq and others
......................... Respondents(In C.P. No. 310 of 1988)
The Local Government (Upazila Parishad and Upazila Administration Reorganisation) Ordinance, 1982
The Acting Chairman merely functions in the office when the office is vacant but he is not the holder of the office as Chairman. The holder of the office is the person who is directly elected and it cannot vest in the office of the person who is indirectly elected. In interpreting section 4(3) we cannot read 'Chairman' includes 'acting Chairman'. The legislature did not say so. Hence, there is no hesitation in holding that the noconfidence passed consisting of nominated chairman as members who participated in voting but not authorised by law, was not passed validly and legally because the composition of the Upazila Parishad meeting was not in accordance with law. ………………………(24 & 33)
Cases Referred To-
Namdeorao Madhavroa Thakre Vs. Dulaji Sitaram Patil 70 Bombay 843 Sukhdeo vs. Arrah Municipality A.I.R. 1956 Pat. 367 Shyampada vs. Abani Mohan A.I.R. 1957 Cal. 420 Mangla Prasad Vs. District Magistrate A.I.R. 1971 All 77(FB).
Abdul Wadud Bhuiyan, Senior Advocate, instructed by MJK. Khan, Advocate-on-Record—For the Appellants (In C.A. No. 1 of 1989).
M. Nurullah, Attorney-General with B. Hossain, Deputy Attorney General, instructed by Mr. M. R. Khan, Advocate-on-Record—For the Petitioners (In C.P. No. 310 of 1988)
Serajul Huq with Dr. Kamal Hossain, Senior Advocates, instructed by Sharifuddin Chaklader, Advocate-on-Record— For the Respondent No. 1 (In C. A. No. 1 of 1989)
Serajul Huq, Senior Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record—For Respondent Nos. 2-12 (In C. P. No. 310 of 1988).
Not represented— Respondent Nos. 2-13 (In C. A. No. 1 of 1989).
Not represented— Respondent No. 1 (In C.P. No. 310 of 1988).
Civil Appeal No. 1 of 1989 with Civil Petition for Special Leave to Appeal No. 310 of 1988.
(From the Judgement and order dated 22.11.88 passed by the High Court Division, Comilla Bench, Comilla in Writ Petition No. 32(C) of 1988).
Badrul Haider Chowdhury J.
1. This appeal by special leave is directed against the judgment and order passed by the High Court Division, Comilla Bench, Comilla in Writ Petition No. 32(C) of 1988. Respondent No.1 herein filed the aforesaid writ petition challenging the order of his removal as Chairman Chandina Upazila Parishad on the basis of no-confidence motion passed in a special meeting as per Rule 4 of the Upazila Parishad Chairman and Members (Resignation, Removal and Vacation of office) Rules, 1986 called hereinafter Upazila Parishad Rules.
2. Facts are as follows:- Chandina Upazila comprises of 12 Unions including Galli (north) Maizkhar and Barera (south). Respondent No. 1 was elected Chairman of Maizkhar Union and then he contested for the chairmanship of the Upazila Parishad and he was elected as Chairman of the said Upazila Parishad defeating his opponent one Mr. Red-wan, who, however, was subsequently elected as the member of the Parliament. The troubles started from here.
3. The casual vacancy of Chairman of Maizkhar Union Parishad was filled up when Abdul Hamid Bhuiyan was elected as Acting Chairman of the said Union Parishad. This Acting Chairman Abdul Hamid Bhuiyan was soon replaced by another acting Chairman namely, Md. Idris on 2.7.86. Then Mr. Abdul Mazid Master the elected Chairman of Gallai (north) Union Parishad was suspended on 28.11.85. Thereafter Monu Mia an elected member was elected as the acting Chairman of the Union Parishad who however, was replaced by another elected member namely Mobarak Hussain on 5.6.86. Then in Barera (south) Union Parishad Ramuzuddin, the elected Chairman was suspended by the Government on 29.11.86 in his place Abdul Aziz an elected member was elected as acting Chairman but he too was replaced on 4.12.86 by another member namely, Abdul Gani. The petitioner alleged that by .such devices acting Chairmen were brought as representative members of the Upazila Parishad in order to remove him.
4. According to law an Upazila Parishad consists of (a) a Chairman, (b) Representative members; (c) Three women members; (d) Official members; (e) Chairman of the Upazila Central Co-operative Association within the Upazila and (f) one nominated member. The Chairman and the elected members shall be elected by the direct election on the basis of adult franchise; until such time the Chairman enters upon his office the Upazila Nirbahi Officer or .any other person nominated by the Government shall act as Chairman.
Then comes section 4(3) which reads as follows:-
"The Chairmen of the Union Parishads within the Upazila shall ex-officio be the representative members of the Parishad."
Sec. 13 deals with removal of Chairman. The Rules provides for the manner of calling special meeting for removal of Chairmen (Rule 4) and Rule 8 stipulates that minimum four-fifths of the total number of representative members must pass the resolution for removal in such special meeting. Rule 4 says not less than two-thirds of the total number of representative members must sign the requisition for such meeting.
5. The crux of the whole problem is here. The requisition for special meeting was signed by seven elected-Chairmen of the Union Parishad and one acting Chairman on 1.9.86. So the requisite number of having eight members for summoning the special meeting was fulfilled; then in the special meeting the resolution was passed by the representative members removing the chairman of which eight were elected Chairmen and three acting chairmen. So in this case also the total representative members which requires not less than four-fifths of the total number was also fulfilled. Then the Government approved the resolution as per Rule 12.
6. Respondent No. 1 Md. Monirul Huq challenged the resolution of his removal mainly on the ground that the resolution was passed not in accordance with law inasmuch as a requisition meeting was signed only by the seven elected members who were the representative members. The requirement of law is minimum 8 members; the acting chairmen are not representative members within the meaning of the law. Similarly the no-confidence resolution was passed by 11 members no doubt (the requirement of law is only 10 members) but out of this 11 only 8 were elected Chairmen and the three acting chairmen. It was contended that since these acting chairmen are not representative members the removal was not passed in accordance with law.
7. The learned Judges of the High Court Division have dealt with the meaning of the provision of section 4(3) which says the Chairman of the Union Parishad within the Upazila shall ex-officio be the representative members of the Parishad. Abdur Rouf, J. observed "plain meaning of the said section 4(3) reveals that the Legislature has intended to attribute a right to the Chairmen of the Union Parishads to be the representative members of the Upazila Parishad because of their position and status." The learned Judge further mentioned that concept of "Acting Chairman" has been brought into this Ordinance for a limited purpose namely, to exercise such powers and discharge such duties of the office of the Chairman which are necessary to run the proper routine administration of the Union Parishad within the ambit of the Union Parishad Ordinance and concluded that the acting chairman could not qualify himself to be a representative member of the Upazila Parishad."
Syed Fazle Ahmed, J. added "if Legislature intended to equate the status of acting chairman with that of Chairman, there was no impediment to do so. But it seems Legislature intentionally refrained from using the word acting Chairman in sub-section 3 of Section 4 of the Upazila Parishad Ordinance with a view to preserve the democratic sprit of Union Parishad ..............................”. The learned Judge pointed out that in the Union Parishad Ordinance the Chairman who is elected on adult franchise basis but acting chairman is not so elected because he is elected from the elected members and concluded "the Chairman and acting Chairman cannot stand on equal footing."
8. In this view of the matter, the High Court Division took the view that the three members who took part in no-confidence proceedings being acting Chairmen were not representative members and as such they were not eligible to cast vote in favour of the resolution in question. Accordingly the rule was made absolute, and it was declared that the removal resolution of petitioner Md. Monirul Huq was passed without lawful authority and of no legal effect.
9. Leave was granted to consider the question, to put it simply, whether an acting Chairman is also a representative member within the meaning of section 4(3) of the Upazila Parishad Ordinance and is entitled to exercise the powers of a representative member and sign the requisition for special meeting and to pass any no confidence motion against the Chairman of the Upazila Parishad.
10. Mr. Abdul Wadud Bhuiyan, the learned counsel placed before us the relevant laws namely, the Local Government (Upazila Parishad and Upazila Administration Re-organisation) Ordinance, 1982 hereinafter referred to as Upazila Parishad Ordinance and he has also placed before us the Local Government (Union Parishad) Ordinance, 1983 hereinafter referred to as Union Parishad Ordinance. The learned counsel submitted section 16 of the Union Parishad Ordinance which reads as under:—
"16. Acting Chairman.- (1) If a vacancy occurs in the office of Chairman or if the Chairman is unable to discharge the functions of his office on account of absence, illness or any other cause, a member elected by the Union Parishad from amongst the elected members shall act as Acting Chairman until a new Chairman elected to fill such vacancy enters upon his office or until the Chairman resumes the functions of his office, as the case may be.
(2) At any time when the Acting Chairman is unable to discharge the functions of his office on account of absence; illness or any other cause, another member elected by the Union Parishad from amongst the elected members shall act as Acting Chairman until a new Chairman elected to fill such vacancy enters upon his office or until the Acting Chairman resumes the functions of his office, as the case may be."
11. And he referred to the definitive section 2(8) to show that function includes power to be exercised and duties to be discharged. It was argued that since the Acting Chairman is performing the function of the Chairman in the Union he is also representative member in the Upazila Parishad by virtue of the office inasmuch as section 4(3) says the Chairman of the Union Parishad within the Upazila shall ex-officio be the representative member of the Upazila Parishad. He has further argued that the Upazila Parishad and Union Parishad laws do not provide separate function to be performed separately by the Chairman and Acting Chairman and hence an Acting Chairman can perform function of the Chairman not only in the Union Parishad but can sit in a special meeting for the purpose of removal of the Upazila Chairman as a representative member. The learned Counsel submitted that the High Court Division erroneously took into the consideration the oath and honorarium to come to a finding on the point. Alternatively Mr. Bhuiyan argued that if the acting chairmen are excluded then the resolution that was passed by 8 elected Chairmen of the Union Parishad should be taken to have been validly passed because it fulfilled the requirement of law.
This argument is ingenuous and gist of it is this: since there were 8 elected Chairmen who undoubtedly fulfill the description of representative members the 4/5th requirement of law is fulfilled; so no objection can be taken to the passing of the removal resolution. This point will be considered presently but before doing so the contention of Mr. Serajul Huq may be noticed.
12. Mr. Serajul Huq pointed out that the Chairman of the Union Parishads shall ex-officio be the representative members of the Parishad. The point merits consideration only upon the wordings of section 4(3) but in the background of entire law that has involved over the years Mr. Huq argued the schemes of the two enactments are to be kept in view for coming to a decision as to meaning of ex-officio representative members of the Parishad.
13. Mr. M. Nurullah, the learned Counsel appearing for the petitioner in Civil Petition for Special Leave to Appeal No. 310 of 1988 adopted the argument of Mr. Abdul Wadud Bhuiyan and contended that there is no magic in the expression 'ex-officio' inasmuch as the Acting Chairman performs the functions of Chairman in the Union Parishad, so in the context of Upazila Parishad such acting Chairman represents the Union Parishad and therefore, he is to be treated as 'representative member' for the purpose of Upazila Parishad. Mr. Nurullah pointed out section 28(5) that no proceeding of the Parishad shall be invalid by reason only that some persons who were not entitled to so sit or vote or otherwise took part in the proceeding.
14. Dr. Kamal Hossain, the learned Counsel appearing for Mr. Serajul Huq in reply submitted that the entire scheme of the Local Government laws show the anxiety of the legislature for maintaining the democratic structure and its preservation and for that purpose the law has been drafted by the draftsmen keeping such view without taking recourse to the technique provided by section 17 of the General Clauses Act.
15. Before we proceed further it will be convenient to note that the Upazila Parishad Ordinance was promulgated in 1982. Section 2 defines Chairman "means the Chairman of a Parishad." Section 4 provides for the composition of the Parishad which shows the Chairman is the only elected person on the basis of adult franchise and the rest of the members namely; women members are nominated by the Government. The official members are ex-officio members without having any voting right and a nominated member from among the residents in the Upazila who is eligible to be Chairman of the said Parishad. Hence, the Chairman is the only person elected by direct election and qualification and disqualification for election of Chairman is given in Section 6. Section 7 prohibits the Chairman to hold any office in any Union Parishad or Pourashava; such elected Chairman is to take oath of office under section 10 and the form of the oath that has been given in the section itself is to say the least is something unique because he not only takes the oath of allegiance to the republic but also takes oath for discharging his duties faithfully and fearlessly and to act fairly and justly in the name of Almighty Allah. He can be removed under section 13 and upon his removal if the office of the Chairman is vacant then as per section 16 "a representative member nominated by the Government shall act as Chairman until a new Chairman elected to fill such vacancy enters upon his office or until the Chairman resumes the functions of his office, as the case may be," Dr. Kamal Hossain argued that only elected person in the Upazila Parishad is the Chairman himself and upon his removal one of the representative members can be nominated by the Government. Thus the democratic structure that has been contemplated can be dismantled after the removal of the elected Chairman. Hence, the Legislature have contemplated the removal of a Chairman a matter for consideration of special meeting and provided for special Rules. Rule 4 is in the following terms:—
"4. Manner of calling special meeting for removal of Chairman.- (1) For the purpose of removal of a Chairman on any ground mentioned in section 13(1), a requisition stating the grounds for removal signed by not less than two-thirds of the total number of representative members shall be presented to the Government with a copy to the Authorised Officer for convening a special meeting as required by section 13(2).
(2) The Government shall, within a period not exceeding sixty days, forward the requisitions to the Authorised Officer."
And Rule 8 provides a manner of passing such resolution: - No resolution removing the Chairman shall be passed or shall be deemed to have been passed unless four-fifths of the total number of representative members votes for the resolution. The law is to be interpreted in this setting. In the definitive section the expression "representative member" has not been defined. It has been used in descriptive manner in Rule 4(3) and 4(3 A).
16. What is the meaning of the expression "ex-officio." Both Dr. Hossain and Mr. Nurullah have placed the dictionary meaning of the word.
17. “Ballentine's Law Dictionary, Third Edition, page 438: Ex-officio means: Ex-Officio (ex of-fishe-o). From or by virtue of the office. A right or privilege in an office arising from one's status as the holder of another office, for example, the right of a justice of the peace membership on a town board. Mozlery & Whiteley's Law Dictionary, 9th Edition page f 26 defines Ex-officio: By virtue of an office. Any prerogative or jurisdiction which a person in office has, by virtue of that office, he is said to exercise ex officio.
18. It will be relevant to consider the word 'acting' also in this connection. In Law LEXICON OF BRITISH INDIA page 23 in giving the meaning of the word acting it is to be said-" Acting, a term employed to designate one performing the duties of an office to which he does not himself claim title; (as) acting appointment." The word is also sometimes used in the sense of "operating" (as) in a provision that one of two companies should be the "acting and controlling" company.
19. Dr. Hossain canvassed the definition of Chairman having been given and without including the acting Chairman in interpreting section 4(3) the court should interpret that the terms 'representative member' which has not been defined means the elected Chairman of the Union Parishad and by virtue of their office being the holder of such office as Chairman of the Union Parishad they are ex-officio representative members of the parishads. It cannot include anybody else. To say holder of the office is one thing and performing function is something different. Dr. Hossain focussed section 14(2) of the Union Parishad Ordinance which reads as follows:-
"While the office of Chairman is vacant, the functions of the office shall be performed by the Acting Chairman referred to in section 16."
20. It is expressed in this sub-section the difference between the office and the function of the office— one is to the title of the office another contemplates doing of the functions. Both cannot be same. It will be absurd to contemplate any other shade of meaning.
21. Mr. Nurullah argued that the acting chairman performs the function of the Chairman of the Union Parishad but he also represents the Union Parishad in the Upazila Parishad. To hold otherwise, it is submitted, is to deprive the representation of the Union Parishad in the Upazila Parishad.
22. Dr. Hossain submitted that the acting Chairman actually represents a ward of the Union while the Chairman of the Union represents the entire Union. The Chairman is elected by direct election and so are the elected members but the elected members represent only ward. While defining Chairman, section 2(3) says it means the Chairman of the Union Parishad. Section 2(11) says the 'member' means: the member of Union Parishad.
23. The law says that any voter of a ward for the purpose of election of a member of that ward may propose the name of any person who is duly qualified as elected member. But in case of Chairman any voter of any ward of a Union may propose the name of a person who is qualified as elected Chairman. So it is clear the Chairman is elected by the entire Union whereas a member is elected by the voters of the ward. Section 5(4) says the Chairman of the Union Parishad shall also be deemed to be a member of the Parishad but section 8(4) clarifies that a person cannot be candidate both for election to the office of the Chairman and elected member of the Union and sub-section (2) says that if a person offers himself, at the same time, to be a candidate for election to the offices of Chairman and elected member, all his nomination papers shall stand void. Then section 16 says if any vacancy occurs in the office of Chairman or if the Chairman is unable to discharge the functions of his office on account of absence, illness or any other cause "a member elected by the Union Parishad from amongst the elected members shall act as Acting Chairman until a new Chairman elected to fill such vacancy enters upon his office or until the Chairman resumes the functions of his office." Section 16(2) says "if the Acting Chairman is unable to discharge his function another member elected by the Union Parishad from amongst the elected members shall act as Acting Chairman until a new Chairman elected to fill such vacancy enters upon his office or until the Acting Chairman resumes the functions of his office, as the case may be."
24. To put it simply: suppose the elected Chairman is unable to discharge function of his office then one of the elected members will be elected to function as Acting Chairman and if he can not function then another member will be elected by the Union Parishad to act as Acting Chairman. The elected Chairman is unable to function; so Y an elected member is elected by the members of the Union Parishad to discharge the function as Acting Chairman and if this Acting Chairman also cannot function then Z another member is elected to function as Acting Chairman but if Y comes back and resume his function of his office as Acting Chairman then Z does not function any more as Acting Chairman. It is thus apparent that the full emphasis is in elective representation i.e. the Chairman must be directly elected on the basis of adult franchise. The Acting Chairman merely functions in the office when the office is vacant but he is not the holder of the office as Chairman. The holder of the office is the person who is directly elected and it cannot vest in the office of the person who is indirectly elected. Acting Chairman is indirectly elected; he is elected by the other elected members of the Parishad and not by direct election of the voters. That makes the whole difference. This is why in the definitive clause it has been said Chairman means Chairman of the Union Parishad and it does not say 'includes' any other person. It is an exclusive expression not inclusive. Whenever inclusive definition has been used it has been said expressly. See the definition 2(4) for Circle Officer, 2(23) Sub-Divisional Officer and the inclusive definition 2(5) Deputy Commissioner whereas the definition of Upazila Nirbahi Officer is exclusive 2(28). The argument as has been advanced by Mr. Nurullah on the various aspects namely, section 36 (Executive powers of the Union Parishad), section 37(2) meeting of the Union Parishad, section 39(1) (c) on the report on contracts of the Union Parishad, section 49(2) Auditor may examine the Chairman or any member, officer or employee of the Union Parishad for the purpose of audit,-Section 52 Recovery against liabilities, section 71 Compounding of offences, section 72 Cognizance of offences, section 75 Duties of Police, section 81 Public servants and section 82 Protection of action taken in good faith-all these show according to Mr. M. Nurullah the nature of the business of the Union Parishad and in the absence of the Chairman the Acting Chairman performs his function therefore in representing the Union Parishad the Acting Chairman can be taken as the representative member of the Upazila Parishad.
25. There is a fallacy in the argument that would be apparent from section 37(2) which says all meetings of Union Parishad shall be presided over by the Chairman and, in his absence, by the acting Chairman and in the absence of both, by a member chosen for that purpose by the members present. This is necessary for the purpose of the administration of the Union Parishad so that no vacuum is caused. That is why section 16(2) has provided for election of another Acting Chairman when the first Acting Chairman is unable to discharge his function but the second Acting Chairman vacates his office when the first Acting Chairman resumes his function. Business as usual—that is the theme. But when the question of removal of the Chairman of the Upazila Parishad comes for consideration who is the only elected person in the Parishad set of special Rules have been provided for. As has been noticed Rule 4 and Rule 8 of the Upazila Parishad Chairman and Members (Resignation, Removal and Vacation of Office) Rules, are intended for requisition by 2/3rd of the members of the total members and it is to be passed by not less than 4/5 the of the total numbers of representative members. These are the special Rules specially provided for removal because the Upazila Parishad Chairman is the only elected person. See Rule Upazila Parishad (Election and Chairman Rules), 1983. This business of removal is not the usual business of the Parishad as provided by section 28 for disposal of business. So the argument of Mr. M. Nurullah on section 28(5) that the defect of constitution of Parishad will be immaterial is not substantiated.
26. Next, what is meant by the expression "total number of representative members." This was argued by Mr. Bhuiyan.
27. In Namdeorao Madhavroa Thakre Vs. Dulaji Sitaram Patil 70 Bombay 843 a Full Bench of the Bombay High Court while interpreting the expression "the total number of councilors (other than associate Councilors)" in sec. 49(7) Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 noticed that the constitution of the Zilla Parishad under the enactment and found "it would appear that Zilla Parishad consists of a number of councilors which is never certain" and after examining the law it was concluded that the expression means "the actual number of councillors other than associate councillors who are for the time being entitled to sit and vote at the time of the motion of no-confidence." The Full Bench distinguished the Patna case. Sukhdeo vs. Arrah Municipality A.I.R. 1956 Pat. 367 and the Calcutta case Shyampada vs. Abani Mohan A.I.R. 1957 Cal. 420 of the ground the expression was not exactly the same as the expression which the Full Bench was considering. In Patna case the expression was "the whole number of Commissioner" in sec. 34 of the Bihar and Orissa Municipal Act, 1922 and in the Calcutta case it was section 61(2) of the Bengal Municipal Act, 1932 where the expression "was "not less than two-thirds of the whole number of Commissioners." The Bombay Bench then observed: "The word 'whole' may carry a different meaning from word 'total' in the particular context in which it is used in that Act."
28. This view, it seems, was not shared in an Allahabad case in Mangla Prasad Vs. District Magistrate A.I.R. 1971 All 77(FB) where it was observed that the meaning of the word "total number of members" is quite plain. It can hardly be disputed that the words "total" and "whole" are synonymous. The dictionary meaning of the word "whole" is total and vice-versa. It was observed "In fact the whole number of a Board or a body is a well known expression and is used to convey the totality of the members provided for a complete constitution of the body."
29. Mr. Bhuiyan relied on the Bombay case while Mr. Serajul Huq placed reliance on Allahabad case. In Bombay case the Full Bench noticed "we may also reiterate here the Act is not a very bright example of legislative draftsmanship" and in consequence "these expressions have given rise to considerable litigation and are calculated to encourage the finding of technical flaws in the elections to the various bodies under the Act." Fortunately, we are not faced with such predicament and our law is clear and precise expression of the legislative will is reflected in the enactment.
30. As already noticed section 4(3) is in these terms: "The Chairman of the Union Parishad within the Upazila shall ex-officio be the representative members of the Parishad". So the composition of the Upazila Parishad has been clearly stated insofar the representative members are concerned. It will depend upon the size and number of the Union Parishad. Each Union Parishad has got only one Chairman and such Chairman is the representative member for the Upazila Parishad. An exception has been made by 4(3A) to include the Chairman of the Pourashava, if any, within the Upazila and such Chairman or a Commissioner nominated by the Chairman shall also be a representative member. There is no ambiguity or any uncertainty as to the total members of the Upazila Parishad.
31. Mr. Bhuiyan relied on Bombay case to argue his alternative point namely, if the acting chairmen are excluded, still the impugned no-confidence motion could be taken as has been validly passed because the required member is there on the interpretation "who are for the time being entitled to sit and vote at the time of the motion of no-confidence."
32. The argument is not tenable. The law having fixed the number by 4(3) and adding another person if there is a Paurashava 4(3A) make the scheme of composition complete and invariable. There is no scope to add or subtract by ingenious method. The requirement for commencing such special meeting is in Rule 4 and the no-confidence motion to be passed by a specific number of the representative members is in Rule 8. Such meeting is not the meeting contemplated in section 28. Therefore the argument of Mr. Nurullah that the proceedings will not be vitiated due to any defect in the constitution of the Parishad as mentioned in sub-section 5 does not hold good. The meeting for passing a no-confidence motion is a special meeting and for such purpose a separate set of Rules have been provided for.
33. To sum up: in interpreting section 4(3) we cannot read 'Chairman' includes 'acting Chairman'. The legislature did not say so. The technique is known and whenever it wanted -to convey such meaning it said so expressly sec. 4(3A). Hence, there is no hesitation in saying that the no-confidence was not passed validly and legally because the composition of the Upazila Parishad meeting was not in accordance with law. The High Court Division was correct in taking the view.
In the result, the appeal is dismissed. No costs C.P. No. 310 of 1989 are also dismissed.