1. SALAHUDDIN AHMED, J. This petition arises out of a dispute over the location of the [Shambhupura Union Council Office.
2. The Rule nisi is directed against an order passed by respon--dent No 2, the Additional Deputy Commissioner (Dev,), Dacca, intimating to the Sub-Divisional Officer, Narayanganj (Controlling Authority of the Union) that Nabinagar had been finally approved as the site for the office of the Union Council.
3. The petitioner is a member of the said Union Council and held the office of the Chairman of the Council till August 1965.
4. It is the petitioner's case that, as there was a controversy over the selection of site for constructing the Union Council Office, the then Controlling Authority, namely, Mr. M. A. Sattar, Sub-Divisional Officer, directed the Union Council to hold a special meeting for deciding the question. In pursuance of this direction, a special meeting was held on the 15th of October 1962 which was attended by only six out of the twelve members of the Union Council. It may be stated here that the members of the Union Council were equally divided on this question, and while six members were in favour of locating the office at Hussainpur, the other six members were in favour of setting up the office at Nabinagar.
5. To revert to the petitioner's case, the special meeting decided in favour of setting up the Union Council Office at Hussainpur, and the Controlling Authority having approved of this proposal, a semi-permanent office was constructed by the end of December 1962. Thereafter, Mr. M. A. Sattar, the Controlling Authority, was succeeded by Mr. S. Hasan, Ahmed. The six members of the Union Council who did not approve of Hussainpur as the site of the Union Council Office and were in favour of Nabinagar as the site of the office kept on agitating against the decision of the Controlling Authority to set up the office at Hussainpur with the result that Mr. Hasan Ahmad (the succeeding Controlling Authority) investigated the matter afresh, and after having visited both the sites at Hussainpur and .Nabinagar, sent a detailed report to the Deputy Commissioner, Dacca recommending Nabinagar as the suitable site for the permanent Union Council Office of Shambhupura. The Deputy Commissioner referred the matter to the Thana Council concerned for a decision in the matter. The Thana Council, by a substantial majority, decided in favour of Nabinagar as the site of the office. The decision of the Thana Council was then approved by the Deputy Commissioner and the approval of the site at Nabinagar was conveyed to the Control-- ling Authority by respondent No. 2, the Additional Deputy Commissioner (Dev.), Dacca, by his memorandum dated the 27th of December 1965.
6. The petitioner has challenged the validity of this order of the Deputy Commissioner before us.
7. On the application of one Mohiuddin Ahmed who is a member of the Union Council and appears to be in the group of members in favour of Nabinagar, he was added as a respondent by an order of this Court.
8. On behalf of respondents 1 and 2, an affidavit-in-opposition has been filed controverting the allegations made in the petition. The sum and substance of the affidavit is that in fact previous to the special meeting of the Union Council held on the 15th off October 1962, the then Controlling Authority, Mr. A. S. H. K. Sadiq, had already selected Nabinagar as the site for construc--petition of the said Union Council Office after due enquiry and investigation. The selection of Nabinagar was also confirmed by Mr. Sadique's successor Mr. Hedayet Ahmed sometime in July 1962. In support of this statement, the order of Mr. Hedayet Ahmed has been annexed to the affidavit as Annexure `L' which reads as follows:- "The site at Nabinagar was inspected by the then C. O. Who had agreed with the suggested site. My predecessor also approved of the same. There is no need for any further approval. Direct the Chairman Shambhupur to select this site at Nabinagar and construct the Union Council Office there at an early date."
9. The petitioner who was then the Chairman of the Union Council and apparently was in favour of setting up the Union Council at Hussainpur did not comply with this' order with the result that the six members of the Council who were in favour of Nabinagar complained to the Controlling Authority about the non-compliance by the petitioner of the said order of the Control--ling Authority. It has been stated on behalf of the respondents that the seed store has already been established at Nabinagar and that Nabinagar, comparatively, is a much better site than Hussain--pur from the point of view of communication and from the point of view of the larger number of population that it serves. It is pointed out that Nabinagar being situated on the bank of the river Brahmaputra has both road and river communication open throughout the year. The respondents have also pointed out that, as Nabinagar had already been selected by the Controlling Authority of the Union Council and the selection bad never been set aside by any authority superior to the Controlling Authority, the selection of Nabinagar stands valid to this day.
10. Appearing on behalf of the petitioner, Mr. Mahbubuddin Ahmed has contended that setting up of the office of the Union Council is a matter entirely within the jurisdiction of the Union Council, and the Union Council in its special meeting dated the 15th of October 1962 having decided to set up its office at Hussainpur, and the decision having been approved of by the then Controlling Authority, Mr. M. A. Sattar, the decision in favour of Hussainpur cannot be interfered with by the Deputy Commissioner who legally does not come into the picture at all. The proposition, on the face of it, seems to be of substance. The facts, however, as revealed in the affidavits-in-opposition support-- ed by the annexures, speak otherwise and we have no reason to doubt the veracity of the statements in this respect. As we have noticed already, even before the special meeting held on the 15th of October 1962, the then Controlling Authorities, namely, Mr. A. S. H. K. Sadiq and Mr. Hedayet Ahmed, had already selected Nabinagar as the site for locating the Union Council office. If the Union Council felt aggrieved by this decision, it could, under Article 74, sub-Article (2) (c), of the Basic Demo--cracies Order, 1959, represent against it to the Collector. This procedure, however, was never followed in this case. We reproduce the relevant provisions of Article 74 of the said Order in support of our view:- "74. Control over the activities of local councils.-(1) If, in the opinion of the Controlling Authority, anything done or intended to be done by or on behalf of a local council is not in conformity with law, or is in any way against public interest, the Controlling Authority may by order :-
(a) ---------------
(b) ------------..
(c) ------------..
(d) require the local council to take such action as may be, specified.
(2) Where an order under clause (1) is made by any Control--ling Authority other than the Government, the local council concerned may, within thirty days of the receipt of the order, represent against it :-
(a) ---------------------..
(b) ---------------------..
(c) to the Collector, if the order was made by the Sub---Divisional Officer; and the authority to whom the matter is so represented shall, within thirty days of the receipt of the representation, either confirm or modify or set aside the order.
(3) 1f for any reason the order is not confirmed or modified within the aforesaid period, it shall be deemed to have been set aside."
11. On the contrary, what appears to have been done by a section of the members of the Union Council was to resort to an unwar--ranted procedure, namely, to approach the succeeding Controlling Authority, and induce him to revise the decision of his predecessor in the matter of selection of site. The successor Controlling Authority, namely, Mr. M. A. Sattar, reopened the question of selection of site and took a decision albeit consistent with the resolution of the special meeting passed on the 15th of October 1962, declaring Hussainpur as the site of the Union Council office which was contrary to the earlier decision in favour of Nabinagar taken by his predecessors, Messrs A. S. H. K. Sadiq and Hedayet Ahmed. Be that as it may, there did exist a dispute as to the respective claims of Hussainpur and Nabinagar as the site of the Union Council office, and each of the two groups of members was clearly reluctant to give up its claim or submit to the decision in favour of the other. In this state of affairs, in our opinion, the Deputy Commissioner was right in first obtaining a fresh report on a question by the then Controlling Authority, Mr. S. Hasan, Ahmed, and then referring the matter to the relevant Thana Council which consisted of Chairman of the Union Councils situates in the particular 'Thana as well as some members nominated by the Government. As this was a vexed question between the parties and a decision one way or the other might cause bitterness between them, it was only proper that a democratic decision should have been taken, and the only way to do it in the presence of the deadlock in the Union Council itself was to refer the matter to the Thana Council.
12. It has, however, been contended on behalf of the petitioner that the Thana Council was not competent to consider this matter. Article 32 of the Basic Democracies Order is as follows:- "32. Functions of Thana and Tahsil Council.-(I) Subject to rules, a Thana or Tahsil Council may, and if required by the District Council shall undertake all such functions in the Thana or Tahsil as the District Council is competent to undertake in the District.
(2) A Thana or Tahsil Council shall co-ordinate the activities of all Union Councils and Town Committees in the Thana or Tahsil, as the case may be, and shall in this behalf perform such functions as are likely to promote the purposes of this Order.
(3) The Government may, either generally or in respect of any particular Thana or Tahsil Council, direct from time to time that any functions entrusted to the District Council, or to any Union Council or Town Committee in the Thana or Tahsil shall, subject to such terms and conditions as may be specified in the direction, be undertaken by the Thana or Tahsil Council concerned.
(4) In the performance of their functions, the 7 bana and Tahsil Councils shall be responsible to the District Council concerned, and shall act in accordance with such directions as the District Council may from time to time give."
13. It appears to us that the Deputy Commissioner representing the Government in the District has jurisdiction to refer a matter of the present nature to the Thana Council for its consideration. In any event, the impugned order of the Additional Deputy, Commissioner (respondent No. 2) fixing Nabinagar as the site for' the Union Council office is nothing but reiteration of the original decision in this respect legally taken by the then Controlling Authority Mr. A. S. H. K. Sadiq.
14. As we have already said the order of Mr. A. S. H. K. Sadiq to set up the Union Council office at Nabinagar not having been superseded by the order of any competent Authority, his decision stands to this day, and the impugned order not having affected this decision, cannot be said to be tainted with any illegality.
15. There is another aspect of this case. The petitioner who is merely a member of the Union Council does not appear to us to be competent to maintain the present application inasmuch as the question of selecting a site for setting up the Union office is entirely a matter between the Union Council concerned' and the Controlling Authority or the Government, and therefore it is the Union Council alone which can claim to be an aggrieved party within the meaning of Article 99 of the Constitution and which can maintain an application of the present nature.
16. For the reasons stated above, this Rule is discharged; but, having regard to the facts of this case, we make no order as to costs.
17. Before we part with this case, we may add that although we asked Mr. Yaqoob Hussain, learned Advocate appearing for respondents 1 and 2, to produce the entire records of this case he has failed to do so. He has stated that he is not in a position to produce any records besides those already made annexures to the affidavit-in-opposition of the respondents 1 and 2.
18. A. H. KHAN, J.----I agree.