Abdul Hamid Khan Vs. Miah Nurul Islam and others

Abdul Hamid Khan. (Appellant)

Vs

Miah Nurul Islam and others  (Respondents)

Supreme Court

Appellate Division

(Civil)

Badrul Haider Chowdhury J

Shahabuddin Ah­med J

M.H. Rahman J

A.T.M. Afzal J

Judgment

March 13, 1989.

The Constitution of Bangladesh 1972, Article 102

Disputed question of fact being involved in the case, the High Court Division erroneously interfered in writ jurisdiction. The appeal is allowed and the judgement and order of the High Court Division is set-aside………………..(3 & 4)

Lawyers Involved:

Dr. Kamal Hossain, Senior Advocate instructed by Aminul Huq, Advocate-on-Record.— For the Appellant.

Khandker Mahbubuddin Ahmed, Senior Advo­cate (Mrs. Rabeya Bhuiyan, Advocate with him), instructed by M. Nowab Ali, Advocate-on-Record.—For Respondent No. 1.

Ex-parte—Respondent Nos. 2-10.

Civil Appeal No. 27 of 1988.

(From the judgment and order dated 29.8.88 passed by the High Court Division, Dhaka in Writ Petition No. 376 of 1988.)

Judgement:

Badrul Haider Chowdhury J.-In this ap­peal by special leave the only question is whether the High Court Division was correct in setting aside the order of the Election Commission for publica­tion of the result of the appellant.

2. The appellant received highest number of votes in an election of the Office of Chairman of No. 12 Amirabari Union Parishad, Upazila Trishal, Mymensingh. The Election Commission, by an or­der dated 31st March, 1988 accepted the result and is­sued notification in this regard for publication in the Official Gazette. This order was challenged by a de­feated candidate by filing the Writ Petition No. 376 of 1988 on the ground that no election was held be­cause of the disturbances in one of the centres. The High Court Division after hearing the parties made the Rule absolute and set aside the Election Com­mission’s order with significant observation “that the rights of the parties would not be prejudiced by this decision”.

3. Dr. Kamal Hossain, the learned counsel ap­pearing for the appellant, contended that the learned Judges were aware of the fact that disputed question of facts were involved in the matter and therefore should have dismissed the writ petition. The point has substance. In view of our decision in bench cases Civil Appeal Nos. 40, 38 and 29 of 1988 we have no hesitation in saying that the High Court Division erroneously interfered in the writ jurisdiction on a matter which involves disputed question of fact.

4. In the result, this appeal is allowed and the judgment-and order of the High Court Division is set aside without any order as to cost. Writ is recalled.

Ed.

Source: 42 DLR (AD) (1990) 49

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