Abdul Jabbar Dakua Vs. Kanchan Ali Sikder and ors

Abdul Jabbar Dakua (Appellant)

Vs.

Kanchan Ali Sikder and 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 29, 1989.

The Local Government (Union Parishads) Ordinance, 1983 and the U.P. Election Rules, 1983 made thereunder. Rule 70

It does not appear that the respondent was very much keen or vigilant for participating in the election otherwise he would have made efforts as other persons from other Unions did and obtained favourable orders from the election commission following enquiries caused to be held. Respondent could not rightfully claim any benefit on the basis of general findings made in the (Annexures ‘D’ & ‘E’) after all these months. He made no move after the district election officer had refused to accept his nomination paper to approach the Election Commission immediately which he did after two months of the election. His belated prayer was rejected by the Election Commission. It was not right and proper for the High Court Division to direct the Election Commission to dispose of the application of the respondent who missed the bus due to ……………….and it is well known delay not only defeats justice but in some cases it defeats rights also.

Lawyers Involved:

S.S.Haldar, Senior Advocate, instructed by Ranesh Chandra Maitra, Advocate-on-Record, — For the Appellant.

Khan Saifur Rahman, Advocate (M.A.Wahhab Miah, Advocate with him) instructed by Md. Sajjadul Huq, Advocate-on-Record— For the Respondent No. 1.

Respondents No. 2-6 — Not Represented.

Civil Appeal No. 57 of 1989.

(From the judgment and order dated 21.3.1989 passed by the High Court Division, Barisal Bench, in Writ Petition No. 16 of 1988).

Judgment:

A.T.M. Afzal J.-The appeal by leave is from the judgment and order dated 21 March, 1989 passed by the High Court Division, Barisal Bench making the rule absolute in Writ Petition No. 16 of 1988.

2. The matter arises out of the last election to the Office of Chairman of No. 10, Garuria Union Parishad under Bakerganj Upazila which was to be held on 10.2.88. The date for filing nomination pa­pers for the said election was on 10.1.88. Respon­dent No. 1 who wanted to be a candidate in the said election for chairman deposited security money of Tk.1000/-on that date and obtained nomination paper which was duly filed in. Respondent No.1 in the aforesaid Writ petition alleged that while he along with his supporters ‘proceeded towards the office of the Returning Officer to submit the nomination pa­per, he was obstructed by the armed gangs of the ap­pellant. The respondent made repeated attempts to submit his nomination paper but he was always ob­structed by the supporters of the appellant. The respondent stated further that he then rushed to the of­fice of the District Election Officer and prayed for accepting his nomination paper but the Returning Officer only accepted his application by making an endorsement therein and did not accept the nomina­tion paper on the ground that there was no rule for accepting the same in his office.

3. The respondent in his application to the Re­turning Officer dated 10.1.88 (Annexure ‘C’ to the writ petition) clearly mentioned that he could not file his nomination paper because of obstruction created by the appellant’s son and other hired goondas. On 12.3.88 the respondent filed an application before the Election Commission stating all about the obstruction caused to the filing of nomination paper and prayed for holding election of the said Union Pari­shad after setting aside the election thereof.

4. The Election Commission by a short order passed on the body of the said petition on 2.7.88 re­fused to interfere in the matter. The respondent then filed the aforesaid Writ petition and a rule was issued only upon the Election Commission on 4.8.88. The Election Commission did not enter appearance but the appellant upon whom, no rule was issued appeared and filed an affidavit-in-opposition controvert­ing the allegations made by the respondent.

5. It may be mentioned that as there was no other candidate except the appellant for the office of Chairman of the said Union Parishad, he was de­clared elected unopposed and it was published in the Official Gazette on 7.6.88. The appellant duly took oath of office and assumed charge on 4.7.88.

6. The respondent annexed to his Writ petition an order (Annexure ‘D’) of the Election Commission dated 19.3.88 from which it appears that some other persons who were similarly prevented from filing nomination papers for the Office of Chairman of other Union Parishads in the same Upazila filed applications before the Election Commission, follow­ing which an enquiry by a committee was held at the instance of the Deputy Commissioner, Bakerganj and a report was submitted (Annexure ‘E’’ to Writ pe­tition). The Election Commission in its order ob­served that it was satisfied from the inquiry report that a number of intending candidates were prevented from filing their nomination papers to contest the post of chairman of their respective Union Parishad by coercion and force used by armed miscreants. The Election Commission ultimately directed fresh elec­tion of Chairman in Darial Union Parishad and Kalashkati Union Parishad.

7. It appears that the respondent mainly relied on the aforesaid report and order of the Election Commission to show that he was also a victim of lawlessness and violence created by armed miscreants on the date of filing of nomination paper at the Upa­zila headquarter, but while fresh election was directed in two of the Union Parishads after setting aside the declaration in favour of the unopposed candidates; the same was not done in his case. It seems the learned Judges of the High Court Division were persuaded by the said Annexures ‘D’ and ‘E’ to hold that the Election Commission failed in its duty to look into the allegation of the respondent, specially when on the basis of similar materials the Commission dis­posed of identical allegation on merit in case of some other unions of the same Upazila. Accordingly a direction was given to the Election Commission to dispose of the application filed by the respondent in accordance with law.

8. Leave was granted to examine the propriety of the said order.

9. Mr. S. S. Halder, learned advocate for the ap­pellant, firstly, pointed out that the report in ques­tion was not submitted on any representation of the respondent. He also pointed out that although there were some general findings with regard to obstruc­tion created in filing nomination papers at Bakerganj Upazila Sadar there was no specific finding that ei­ther the respondent or anybody from Garuria Union was obstructed from filing nomination paper. Mr. Halder further submitted that except filing the al­leged petition before the Returning Officer the re­spondent did nothing and allowed the election date to go by which proved that he was not a serious candi­date for the election.

10. We find force in the submission made by the learned advocate for the appellant. It is really strange that the respondent made no effort for caus­ing a contested election to be held on 10.2.88 till 12.3.88 when he came and filed his petition before the Election Commission. It is also strange that his application was disposed of as late as on 2.7.88 when the declaration in favour of the appellant was already published in the Gazette. It does not appear that the respondent was very keen or vigilant for par­ticipating in the election, for, otherwise he would have made efforts as other persons from other Un­ions did and obtained favourable orders from the Election Commission following inquiries which were caused to be held. We do not think that the re­spondent could rightfully claim any benefit on the basis of general findings made in the documents (Annexure ‘D’ and ‘E’) after all these months, particularly when he made no move after the District Election Officer had refused to accept his nomination paper.

11. Further it is not a case where the Election Commission passed an order without hearing the respondent nor is it a case of the discretion having been exercised arbitrarily. In the petition before the Election Commission there was references to the in­quiry report referred to above and when the Election Commission found no reason to interfere even then, we do not think that it was right and proper for the High Court Division to have directed the Election Commission to dispose of the application of the re­spondent again. It is apparent from the facts noticed above that the respondent missed the bus due to iner­tia and it is well known that delay not only defeats justice but in some cases it defeats rights also.

12. For the reasons stated above, the appeal is allowed and the impugned judgment and order are set aside. There will be no order as to cost.

Ed.

Source: 42 DLR (AD) (1990) 101

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