Abdul Mannan alias Manu (Appellant)
Vs.
Sajedul Hoque and others (Respondents)
Supreme Court
Appellate Division
(Civil)
Present:
Shahabuddin Ahmed CJ
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
Judgment
April 3rd, 1994.
Lawyers Involved:
Abu Nesr Md. Gaziul Haque, Senior Advocate, instructed by Md. Ozair Farooq, Advocate-on- Record -For the Appellant.
Rokunuddin Mahmood, Advocate instructed by Sharifuddin Chaklader, Advocate-on- Record- For Respondent No.1.
Not Represented – Respondent Nos. 2 -13.
Civil Appeal No. 67 of 1993.
(From the Judgment and Order dated 22.6.93 passed by the High Court Division in Writ Petition No. 1389 of 1992).
Judgment:
Mustafa Kamal J.- This appeal by leave is from the judgment and order of the High Court Division dated 22.6.93 in Writ Petition No. 1389 of 1982, making the Rule Nisi absolute. Md. Abdul Mannan @ Manu, respondent No. 4 in the writ petition, is the appellant before us.
2. It was the case of the writ petitioner Md. Sajedul Hoque (respondent No. 1 herein) that he was elected as the Chairman of Dapunia Union Parishad, Pabna Sadar Upazila, in 1988 and contested the same election for the same office on 22.1.92 but lost to the appellant Md. Abdul Mannan alias Manu by a narrow margin. Besides, respondent Nos. 5?13(both in the Writ petition and in this appeal) were elected as members thereof in the same election. The names of those elected persons were published in the Official Gazette on 5.3.92. The writ petitioner came to know from a Memo. dated 11.4.92 issued by the then Upazila Nirbahi Officer, Pabna Sadar that the oath taking ceremony of the newly elected Chairman and the members of the said Union Parishad would be held on 15.4.92. The said Upazila Nirbahi Officer by another Memo. dated 16.4.92 asked the writ petitioner to hand over the charge to the newly elected Chairman. The writ petitioner impugned in the writ petition both the aforesaid Memos. dated 11.4.92 and 16.4.92 on the ground that he was not liable to hand over charge as the offices of the Chairman and members had fallen vacant owing to their failure to take oath within the prescribed period and a fresh election should be held for those offices.
3. It was his case that section 9 of the Local Government (Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983), hereinafter called the Ordinance provides that every Chairman and member shall, before he enters upon his office, make, in the prescribed manner and within the prescribed period, an oath in the prescribed form. The Oath of Office (Union Parishads) Rules, 1983, hereinafter referred to as the aforesaid Rules, provides that every Chairman and member of the Union Parishad shall make an oath of office in the Form annexed to these rules before the Deputy Commissioner or such officer as may be authorised by him on such date not beyond thirty days from the date of publication of the names of persons elected or, as the case may be, from the date of their nomination, as may be determined by the Deputy Commissioner. The Rules further provide that if, for any reason, any Chairman or member fails to make an oath of office on the date so fixed, the Deputy Commissioner or any officer authorised by him shall administer the oath of office to such Chairman or member on a subsequent date fixed by the Deputy Commissioner for good cause shown. Section 13(b) of the Ordinance provides that the office of Chairman or member becomes vacant, if he falls to make the oath referred to in section 9 within the prescribed period, unless the Deputy Commissioner, for good cause shown, extends the period. The results of election of the said Union Parishad were published in the Official Gazette by the Election Commission on 5.3.92, as required under section 25 of the Ordinance. In terms of section 9 of the Ordinance, read with the aforesaid Rules the appellant and respondent Nos. 5-13 ought to have taken the oath of their office within thirty days from the said Gazette Notification i.e. within 5.4.92. The time for making the oath was also not extended for any good cause shown as required by section 13(b) of the Ordinance and sub?rule (2) of the aforesaid Rules. The writ petitioner contended that the offices of Chairman and members thus fell vacant under section 13(b). Further, he contended, under section 6 of the Ordinance the term of a Union Parishad shall be a period of three years commencing on the day of its first meeting after its constitution. Section 6(2) provides that a Union Parishad shall, after its constitution, hold its first meeting on such date, not later than thirty days from the day on which the names of its Chairman and elected members are notified in the Official Gazette, as may be appointed by the of the Local Government. The newly-elected Union Parishad has also not held its first meeting on a date not later than thirty days from the date of publication of the names n and member of the elected Chairman and members in the Official Gazette. Section 14 of the Ordinance provides that in the event the office of the Chairman or member becomes vacant not later than one hundred eighty days before the term of the Union Parishad is due to expire, an election or a nomination, as the case may be, to fill the office shall be held or made within sixty days of the occurrence of the vacancy, and the person who is elected in such election or nomination shall hold office for the residue of such term. The writ petitioner contended that the vacation of office of the Chairman and members and a fresh election thereof ought to be notified in the Official Gazette by the Election Commission under section 17 of the Ordinance.
4. No affidavit-in-opposition was filed either by the appellant or by any of the respondents, including respondent Nos. 5?13. At the time of the hearing of the writ petition M/s Abu Bakker and Ismail Hossain, their learned Advocates, informed the Court that they had no instruction in the matter.
5. The High Court Division accepted the legal submissions of the writ petitioner on such unchallenged facts and made the Rule Nisi absolute declaring that the office of the Chairman held by the appellant and that of the members held by respondent Nos. 5?13 of the said Union Parishad have fallen vacant.
6. Leave was granted to consider the submission of the appellant that the learned Advocates for the appellant and respondent Nos. 5?13 were fully paid and instructed to oppose the Rule Nisi and their submission in the Court to the contrary was without authority for which they have already filed an application to the Bar Council for taking necessary action against the learned Advocates. Leave was also granted to consider the appellant’s submission that the matter of taking oath does not lie in the hands of the appellant and respondent Nos. 5-13. By amending the Ordinance by Ordinance No. XXIII of 1988, later Act No. 40 of 1988, the Deputy Commissioner was given the authority to administer oaths of office to the Chairman and members. If he fails to make arrangements to administer oath within thirty days from the publication of result it is the Deputy Commissioner who is to explain if there was sufficient cause for not doing so. The appellant and respondent Nos. 5-13 have nothing to do with the administrative arrangement and they have taken oath at the first available opportunity on the very first day appointed by the Deputy Commissioner, namely, on 15.4.92. The writ petitioner has not made the Deputy Commissioner a party to the writ petition and therefore the matter has been decided in the absence of a necessary party.
7. Mr. AN Md. Gaziul Hoque, learned Advocate for the appellant, draws our attention to the copy of the application in the paper book filed before the Bar Council against the two learned Advocates who allegedly made submissions contrary to instructions given by the appellant and respondent Nos. 5-13. He draws our attention to various sections of the Ordinance and the aforesaid Rules and reiterates the submissions on which leave was granted.
8. Mr. Rokunuddin Mahmood, learned Advocate for writ petitioner-respondent No. 1, made no submissions with regard to the appellant’s complaint against the two learned Advocates. He concedes that it is rational and reasonable to hold that the Deputy Commissioner has to make arrangement to administer oath of office within thirty days of the publication of the result of election, but, lie insists that the appellant and respondent Nos. 5?13 are also not without any duty and responsibility in this regard. They must have been aware of the publication of the result of the election in the Official Gazette on 5.3.92 and it was their duty and responsibility to approach and remind the Deputy Commissioner that the oath of office has to be administered within thirty days. The appellant has placed nothing on record to show that he and respondent Nos. 5?13 have ever done so. In the absence of any proof of such discharge of their duty and responsibility the mandatory provisions of section 13 of the Ordinance will automatically come into play and there is no escape from the consequence provided in the Ordinance itself, namely, the vacation of the office of Chairman and members. With regard to the omission to make the Deputy Commissioner a party he submits that Bangladesh, represented by the Secretary, Ministry of Local Government and Rural Development being respondent No. 1 in the writ petition, the addition of the Deputy Commissioner, Pabna was a superfluity.
9. It appears that in making the Rule absolute the High Court Division has neither taken into account the changes made in the Ordinance from time to time nor has delved deep into the implications of sections 9, 13 and 6 of the Ordinance and the aforesaid Rules.
10. Section 9 of the Ordinance is as follows:
“9. Oath of office.? Every Chairman and member shall, before he enters upon his office, make, in the prescribed manner and within the prescribed period, an oath in the prescribed form…”
11. In what manner the Chairman and members will make an oath and within what period have not been specifically provided for in the Ordinance. Nor has it been provided as to who will be responsible for administering the oath of office to the Chairman and members. Section 2(13) of the Ordinance provides that “prescribed” means prescribed by rules made under this Ordinance and section 83(1) provides that the Government may make rules for carrying out the purposes of this Ordinance. Section 85(1) provides that all rules shall be notified in the Official Gazette and section 85(5) provides that all rules when duly made shall be deemed to form part of this Ordinance and shall have effect accordingly.
12. Section 86 of the Ordinance is important and it provides as follows:
“86. Certain matters to be prescribed.- Where this Ordinance makes any provision for anything to be done but no provision, or no sufficient provision has been made as respects the authority by whom, or the manner in which, it shall be done, then, it shall he done by such authority and in such manner as may be prescribed.”
The Oath of Office (Union Parishads) Rules, 1983 was published in the Official Gazette on the 7th December 1983. Rule 2 of the said Rules is as follows:
“2. Oath of office of Chairman and members :
(1) Every Chairman and member of a Union Parishad shall make an oath of office in the Form annexed to these rules in the office of the respective Union Parishad or at any other public place before the Chairman of the Upazila Parishad or such officer as may be authorised by him on such date not beyond thirty days from the date of publication of the names of persons elected or, as the case may be, from the date of their nomination, as may be determined by the Chairman of the Upazila Parishad.
(2) If, for any reason, any Chairman or member fails to make an oath of office on the date fixed under sub?rule (1), the Chairman of the Upazila Parishad or any officer authorised by him shall administer the oath of office to such Chairman or member on a subsequent date fixed by the Chairman of Upazila Parishad for good cause shown.”
13. It appears that under the original provision of section 13(b) of the Ordinance “the office of Chairman or member shall become vacant if he fails to make the oath referred to in section 9 within the prescribed period, unless the Chairman of the Upazila Parishad or Thana Parishad, as the case may be, for good cause shown extends the period Section 13(b) of the Ordinance was amended by Ordinance No. XXIII of 1988, later made into Act No. 40 of 1988, by which the words “Chairman of the Upazila Parishad or Thana Parishad, as the case may be was substituted by the words “Deputy Commissioner”. It appears that the Oath off Office (Union Parishads) Rules, 1983 was not correspondingly amended and the Chairman of the Upazila Parishad continues to remain the oath?taking authority under the Rules, But section 13(b), as amended, necessarily implies that the Deputy Commissioner is the authority by whom the oath of office is to be administered and therefore the aforesaid Rules will also have to be read in tile light of the change in the substantive provision of law. In other words, it is the Deputy Commissioner or such officer as may be authorised by him before whom the Chairman and member of a Union Parishad shall make an oath of office.
14. If we now read Rule 2 of the aforesaid Rules a little closely it will be found that the authority who will fix a date of making oath is the Deputy Commissioner (previously the Chairman of Upazila Parishad) and sub-Rule (1) of Rule 2 enjoins a duty upon the Deputy Commissioner to fix the date not beyond thirty days from the date of publication of the names of persons elected. Sub-rule (1) of Rule 2 casts no duty upon the elected persons to arrange the, Liking of their oath by themselves.
15. Sub-rule (2) of Rule 2 is not concerned with the failure of the Deputy Commissioner to fix a date of oath within thirty days from the date of publication of results. Sub-rule (2) is concerned with the failure of the Chairman or member to make an oath of office on the date fixed under sub-rule (1). A date fixed under sub-rule (1) is a date fixed within thirty days of the publication of results. Therefore the vulnerability of the Chairman and members of losing their office does not depend upon the failure of the Deputy Commissioner to arrange the date of oath within thirty days from the date of publication of results. They are vulnerable to a loss of their office if in spite of fixing the date within thirty days from the date of publication of results they fail to make an oath of office. Sub-rule (2) of Rule 21 gives the Chairman and members and extra period of grace if for good cause shown they cannot make oath of their office on the date fixed under sub-rule (1). The Rules do not provide for any contingency or ,consequence whatsoever if the Deputy Commissioner himself cannot for any reason fix a date of making an oath of office within thirty days from the date of publication of results. The time?limit of thirty days is for the Deputy Commissioner to adhere to and the elected persons legal obligation is to make an oath if a date has been fixed within the time-limit. It they fail to do so in spite of fixing a date within the time?limit sub?rule (2) of Rule 2 will come into play. Since under section 85(5) of the Ordinance, the aforesaid Rules shall be deemed to form part of the Ordinance, the words “prescribed period” occurring in sections 9 and 13(b) of the Ordinance will have to be interpreted according as the aforesaid Rules are interpreted and according as the words “prescribed period” are treated in the aforesaid Rules.
16. We are quite clear in our view therefore that the words “prescribed period” mean a period of thirty days from the publication of results as far as the Deputy Commissioner 1,3 concerned. If he fails to determine a date within this time?limit no consequence ensues. It is only when the elected person fails to make an oath of office on a date fixed within the time-limit and furthermore when the Deputy Commissioner does not extend the period for lack of showing good cause that the mischief of section 13(b) is attracted. It is not correct to say that the matter of making an oath of office is a dual responsibility of both the elected persons and the Deputy Commissioner and that both of them have a greater or lesser measure of responsibility in adhering to the time-limit. It is for the Deputy Commissioner to adhere to the time-limit and the elected persons have no responsibility in this regard. If the Deputy Commissioner himself fails to adhere to the time-limit, section 13(b) of the Ordinance is not attracted.
17. Coming now to the facts of the case as stated by the appellant in the leave petition it is found that the Election Commission itself forwarded 10 copies of the results of six Union Parishads of Pabna Sadar Upazila, including those of the concerned Union Parishad, to the Deputy Commissioner, Pabna on 8.4.92 for necessary action, i.e., after 33 days of the publication of results. The Gazette Notifications were received by the office of the Deputy Commissioner, Pabna on 11.4.92 and on the same date 15.4.92 was fixed for administration of oath to the appellant and respondent Nos. 5-13. Mr. Rokunuddin Mahmood submits that the Deputy Commissioner must record his reasons for not giving oath of office within thirty days from the publication of results and unless he does so the requirements of “for good cause shown” occurring in section 13(b) of the Ordinance and sub?rule (2) of Rule 2 are not fulfilled. The argument does not stand. The Deputy Commissioner is not obliged to record the reasons for fixing the date on 15.4.92. It is for the elected persons to show good reasons and for the Deputy Commissioner to record the reasons if the elected persons failed to take oath in spite of the Deputy Commissioner fixing a date of oath within thirty days from the publication of results.
18. Now we come to section 6 of the Ordinance, which after various amendments, latest by Act No. X of 1991, unnoticed by the High Court Division, stands as follows:
“6. Term of Union Parishads, etc?-(1) The terms of a Union Parishad shall be a period of five years commencing on the day of its first meeting after its constitution:
Provided that, notwithstanding the expiration of its term, a Union Parishad shall continue to function until the first meeting of the Parishad constituted to succeed it or until the expiry of one hundred eighty days from the date of expiration of its term, whichever is earlier.
(1A) Where a Union Parishad has ceased to function under the proviso to sub?section (1) before the holding of the first meeting of the Parishad constituted to succeed it, an Administrator appointed by the Government shall perform the functions of the Parishad until the holding of such meeting.
(1B) Notwithstanding anything contained in this Ordinance, a Union Parishad shall be deemed to have been duly constituted after the election of seventy?five percent of the total number of its elected members has taken place.
Explanation.- For calculating the seventy-five percent of the total number o elected members, less than point five zero percent shall be ignored and point five zero and above percent shall be rounded off into a whole number.
(2) A Union Parishad shall, after its constitution, hold its first meeting on such date, not later than thirty days from the day on which the names of its Chairman and elected members are notified in the Official Gazette, as may be appointed by the Government.”
19. The proviso to sub?section (1) of section 6 clearly postulates that the outgoing Union Parishad may have to continue functioning upto a maximum period of one hundred eighty days from the date of expiration of its term. It impliedly means that it may not be possible for a newly elected Union Parishad to hold its first meeting immediately after the election. Sub?section (113), by a deeming provision, makes the constitution of a Union Parishad complete if the election of seventy?five percent of the total number of its elected members has taken place. Sub-section (2) requires a Union Parishad to hold its first meeting “on such date” “as may be appointed by the Government” and it is the duty and responsibility of the Government to appoint such a date not later than thirty days from the publication of results. If for any reason the Government fails to appoint a date within the stated period, the proviso to sub-section (1) will come into play. The outgoing Union Parishad can continue to function upto a maximum period of one hundred eighty days from the date of expiration of its term.
20. As for not adding the Deputy Commissioner, Pabna as a party to the writ petition, we think the explanation given by Mr. Rokunuddin Mahmood to be reasonable.
21. For the reasons stated above we hold that the appellant and respondent Nos. 5-13 have not failed to make the oath referred to in section 9 of the Ordinance within the “prescribed period”, as the “prescribed period” in the aforesaid Rules is applicable only when the Deputy Commissioner fixes a date within thirty days from the date of publication of the names of persons elected. The question of showing any good cause for administering the oath of office on 15.4.92 also does not arise as a good cause is to be shown initially by the elected persons and then by the Deputy Commissioner only if the Deputy Commissioner fixes a date of oath within thirty days from the date of publication of the names of persons elected and the persons elected fail to make an oath on the date so fixed. The appellant and respondent Nos. 5-13 have incurred no liability under section 13(b). They continue to hold their respective offices and the High Court Division erred in law in declaring their respective offices to be vacant.
In the result the appellant is allowed without any order as to costs. The impugned order of the High Court Division is set aside and the Writ Petition is dismissed.
Ed.
Source: 46 DLR (AD) (1994) 138