Abul Khair Morselin (Md) (Petitioner)
Vs.
Bangladesh and others (Respondents)
Supreme Court
High Court Division
(Special Original Jurisdiction)
Present:
Abu Sayeed Ahammed J
Khademul Islam Chowdhury J
Judgment
October 17, 2000.
Cases Referred To-
Mohammad Idrish Vs. East Pakistan Timber Merchants Group, Registrar of Joint Stock Companies, East Pakistan, 20 DLR (SC) 355 & A Ghafur, General Secretary, Bangladesh Bus Truck Owners Association, Motijheel, Dhaka Vs. Bangladesh and others 38 DLR 422.
Lawyers Involved:
Moudud Ahmed, Advocate—For the Petitioner
Mahmudul Islam, Attorney General—For the Respondents.
Writ Petition No. 5041 of 2000.
Judgment
Abu Sayeed Ahammed J. – This application is directed under Article 102 of the Constitution of the Peoples Republic of Bangladesh. On 10-10-2000, this matter was placed before a Vacation Bench of this Court and an order was passed to place it before the Regular Bench after reopening of the Court. The Vacation Bench however stayed the election of the Association Group of the Federation of Bangladesh Chamber of Commerce and Industry which shall hereinafter be called FBCCI. After reopening of the Court, this matter has come up before this Bench for hearing.
2. FBCCI have two classes of Membership namely, Chamber group which includes all chambers of commerce and industry and Association group which includes all associations formed on Bangladesh basis, and the election of each group is being held separately and exclusively within the Members of each group.Schedule for holding the election on the 12th October, 2000 was notified.
3. The petitioner is one Md. Abul Khair Morselin, claiming himself as the President of the Gaibandha District Chamber of Commerce & Industry, has filed the Case. His allegation, inter alia, and, in short, is that he was although a member of that Chamber and his name along with five others (five others are not petitioners) were included in the preliminary voters list as voters for the disputed election as required under Article 15A(v) of the Memorandum of Articles of the Association of the FBCCI. But subsequently, the names of this petitioner and 5 others who have not been made parties in this application, were excluded from the final voters list to have been prepared under Article 15A(vii) of the Memorandum of Articles of the Association by the Appeal Board and the petitioner was not notified as to the same. However, he came to learn about the same on 23-8-2000 from the Notice Board of the office of the FBCCI. Thereafter, in compliance of the necessary provision of the Memorandum of the Articles of Association of the FBCCI, he went to the Arbitration Tribunal of FBCCI under section 12 of the Trade Organisation Ordinance, 1961 which is the guiding law for the purpose. The Arbitration Tribunal, according to the petitioner, did not make any decision in the matter and kept it pending. Then he went before the Election Appeal Board. The Appeal Board thus negatives the prayer of the petitioner refusing to include his name in the final voters list for the purpose of ensuing election of the Association group of the FBCCI.
4. At this juncture of the dispute, this present application has been filed under writ jurisdiction and obtained the stay order against holding of the election.
5. Moudud Ahmed, the learned Counsel appeared for the petitioner. Rokanuddin Mahmud, the learned Counsel, has filed an application on behalf of the respondent No.5 for vacating the order of stay granted by the Vacation Bench, as stated above and in that application, he has narrated the Case of the respondents wherein it has been stated, inter alia, that although the name of the petitioner was nominated by the Gaibandha Chamber, but on the face, objection of raised by sonic other Members of the said Chamber. The Appeal Board, after hearing the parties excluded the name of the petitioner and 5 others from the final voters list.
6. Now whole question before us to be decided, in view of the present admitted facts that the petitioner who is not yet a voter and by his grievance, as it is stated which is pending before the Arbitration Tribunal, whether the holding of the election of the Association group of the FBCCI should be stopped on the face of the admitted fact that the election of the Chamber group has already been held.
7. It is also on record and is not denied by the petitioner that he did not go before the Director of Trade Organisation under section 9 of the Trade Organisation Ordinance 1961, which reads as follows:
“9. Registered trade organisation to be subject to the control of Director.- (1) All acts and proceedings of a registered trade organisation shall be subject to the control of the Director and the affairs of such trade organisation shall be managed and conducted in such manner as the Director may, from time to time, direct.
(2) Notwithstanding anything contained in any law for the time being in force or in the articles or memorandum of a registered trade organisation and without prejudice to the generality of the foregoing provision the Director may-
(a)…………………………….
(b)…………………………….
(c)…………………………….
(d) watch and supervise or cause to be watched and supervised, any election held by or for the purpose of electing persons to the Executive Committee or other body including a regional, circle or zonal body of any such trade organization.
In this Case, it is also to be noted that the learned Attorney-General appeared on behalf of the Government who is respondent No.1 in the writ petition and he made submissions, inter alia, that the present dispute is purely in between the private bodies and FBCCI is not even a local authority as defined under section 3(28) of the General Clauses Act and that the government. has no concern at all and the government has been unnecessarily made a party in this Case and in that view of the matter, the Case is not maintainable and it does not come within the purview of Article 102 of the Constitution and the learned Attorney-General submits that the petitioner who is not a voter even, has nothing to do with the election in question. The petitioner at best can fight for his membership of the Federation which consists of two classes of election, one is the Chamber group election and another is Association Group election which are separate and distinct.
8. The election of the Chamber group has already been held on 20th September 2000, one president and 15 Executive Members have been elected and propriety of which is not challenged or objected any where by any one. Now remains the election of the Association group.
Article 15A (vii) of the Memorandum of Articles of the FBCCI provides as follows:
“Any person whose name is not included in the final voters list cannot be a candidate or proposer or seconder of any candidate in the election.”
9. Earlier in many other Cases of the same and similar nature, both Appellate Division and the High Court Division did not find that the Case is not maintainable.
10. The submission of the learned Attorney- General to that effect cannot be accepted without a grain of salt. The remaining portion of the election of the FBCCI should not be stopped on the face of the admitted fact that the election of the Chamber group has already been held.
11. Moudud Ahmed, the learned Counsel appearing for the petitioner, submits that the election of the Chamber group was not free and fair and the election was held illegally and by unfair means adopted in the same. This submission has no substance because this Court sitting in writ jurisdiction cannot investigate the alleged facts and that the said election has not been challenged or objected from any corner.
12. Association group election was scheduled to be held on 12th October 2000 and because of the stay order of this Court that could not be held.
13. It is very important to note that the present petitioner is not a Member of the Association group of the Federation and other 5 members who are said to have been excluded from the final voters list have not come before this Court to join their hands with the petitioners and they are not made parties in this writ petition.
14. Since the election of the Chamber group has been already completed, this petitioner being a Member of Chamber group, he has been in the election business with the association group which is disputed in this Case and even if his name is found to be included in the final voters list as he is concerned with Chamber group that would not serve any purpose whatsoever for the election of the Association group.
15. A similar dispute came up before the High Court Division before another Bench in writ petition No. 2608/2000 that was in respect of Chittagong Chamber of Commerce and Industry and same and similar allegations were involved. Another Bench of this Court has decided the matter on 25th July, 2000 and my learned Brother Justice Chowdhury now sitting with me was a party in that judgment wherein the grievance of the petitioner of that Case of similar nature was negative and turned down and the Rule was discharged. It is also of much importance for the present purpose that the petitioner did not comply with the provision of section 9 of the Trade Organisation Ordinance, 1961 as he did not go before the Director although the activities of the registered trade organisation are subject to the jurisdiction of the Director as set up by the Trade Organisation Ordinance, 1961.
16. In this Case, before coming in writ jurisdiction under Article 102 of the Constitution of the Peoples Republic of Bangladesh the petitioner should have gone before the said Director. The Civil Revisions on similar facts and law (Civil Revision Nos. 4474, 4482 of 1998 were decided) while I was sitting as a Single Bench in Civil matter I myself decided the similar dispute of Chittagong Chamber of Commerce & Industry wherein the aggrieved person was not a voter but wanted to stay the election before he could become a voter, but his prayer was rejected in those Cases. The decision passed in Writ Petition No.2608 of 2000, dated 25th July, 2000 by another Bench, in an unreported decision similar view was taken that unless a person is a voter, on his initiation or at his grievance the election of an organisation like Chittagong Chamber of Commerce cannot be stopped. Similar view we hold in the present Case and legal conflict.
17. In our view, the present writ petition is also premature because even admittedly, an application of the petitioner is pending before the arbitration tribunal.
18. Moudud Ahmed, the learned Counsel for the petitioner cites the decisions in the Case of Mohammad Idrish Vs. East Pakistan Timber Merchants Group, Registrar of Joint Stock Companies, East Pakistan, 20 DLR (SC) 355 and also the decision in the Case of A Ghafur, General Secretary, Bangladesh Bus Truck Owners Association, Motijheel, Dhaka Vs. Bangladesh and others reported in 38 DLR 422 and relying on the same, he submits that the election of the Chamber group has been held illegally and it should be declared ultra vires of the Constitution and before holding of election of the Association group and this petitioner should get a chance to become a voter and to contest in the election. This submission has no substance in view of the aforesaid facts and circumstances and those decisions which are not applicable as this Case differs, both in facts and principle.
19. It is on record that the duration of the present Executive Committee of the FBCCI is going to be expired on 21st October, 2000. So, an organ organisation like FBCCI which concerns with finance and other functions of national importance cannot be thrown into chaos and confusion on the whim of a particular person, who is not yet a voter for the organization’s election.
20. When a part of the election has already been completed without any objection from any corner, we find that the present petitioner has no legal right even according to the memorandum of articles of association of FBCCI, as quoted above and in view of the decisions referred to above, passed in similar matters by this Court earlier, the petitioner is not entitled to any remedy in this Case.
Therefore, we find no merits in this writ petition and accordingly, it is rejected summarily and the order of stay which was granted earlier by the Vacation Bench on 10-10-2000 is hereby vacated and the remaining part of the election of the FBCCI shall be held in accordance with law.
Ed.
Source: 53 DLR (2001) 179