Awlad Hossain Vs. Haji Monwaruddin Ahmed & ors

Awlad Hossain  (Petitioner)

Vs.

Haji Monwaruddin Ahmed & ors  (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Shahabuddin Ahmed J

M.H. Rahman J

A.T.M. Afzal J

Judgment

July 4, 1988

Civil Petition For Special Leave to Appeal No. 102 of 1988

The Union Parishads (Election) Rules, 1983, Rule 70

Practice and Procedure

A suit and the writ petition on same subject matter filed on the same day before the civil court and the High Court Division simultaneously without mentioning either in the suit or in the writ petition about filing of such cases in such manner. Simultaneous remedies from different forums are not contemplated in law. Where there is conflicting opinion whether the election was peaceful in the centre or not, the election commission was quite competent to pass any order including review of the order of any election officer without hearing of any contesting party. The petition is dismissed………………….(3 & 4)

Lawyers Involved:

Dr. Kamal Hosain, Senior Advocate, instructed by Abul Quasem, Advocate-on-Record- For the Petitioner.

Moinul Huq, Advocate, instructed Sajjadul Huq, Advocate-on-Record– For the Respondent.

Civil Petition for Special Leave to Appeal No. 102 of 1988.

Judgment:

Shahabuddin Ahmed J. – In this leave petition, petitioner, a contesting candidate for election to office of Chairman of Panchashar Union Pari-3, Munshiganj, is challenging an order of the Election Commission dated 1 April 1988 directing fresh poll in Benodepur High School Centre. He had filed Writ Petition No. 284 of 1988 challenging this order; but the said Writ-petition was summarily dis­missed by an order dated 13 June 1988.

2. The order for fresh election was challenged taking the ground that according to the Returning-officer and the Presiding-officer election in the dis­puted centre, Benodepur, was held peacefully, votes were counted and the result was announced; polling was not adjourned or stopped at any time during the polling and as such there was no scope for the Elec­tion Commission to interfere or to direct fresh elec­tion. The order for re-election, it is contended, is therefore without jurisdiction. The High Court Divi­sion did not go into the merit of the case but dis­posed of it on a different ground. It is that while fil­ing the Writ-petition before the High Court Division the petitioner simultaneously filed a civil suit, T.S. No. 21 of 1988, in the Court of Subordinate Judge, Munshiganj, seeking the same remedies including an Injunction against the holding of fresh election as di­rected by the Election Commission but kept this matter suppressed both in the Writ-petition and also before the learned senior Judge when stay was ob­tained from him. Explanation of the petitioner was that the suit was withdrawn.

3. We have heard Dr. Kamal Hossain, learned Counsel for the petitioner and Mr. Moinul Huq, and learned Counsel for the respondent. Dr. Hossain has tried to explain the circumstances in which both the writ-petition and the civil suit were filed almost si­multaneously seeking the same remedy, but he has submitted that the civil suit was subsequently with­drawn. Mr. Moinul Huq disputes the claim that the suit was withdrawn. He contends that the suit was dismissed for non-prosecution. Be that as it may, from the Writ-petition and papers submitted by the respondent it appears that both the Writ-petition and the civil suit were filed on the same day, 6 April 1988, seeking the same remedy. According to the pe­titioner, Writ-petition was filed in the “Last hour of 6-4-88” and the civil suit was filed at the “Late hours of 6-4-88”. If the suit had been filed after the filing of the Writ-petition, though on the same day, it could not have been mentioned in the Writ-petition; but filing of the Writ-petition could have been cer­tainly mentioned in the civil suit, Again, when the stay was obtained from the Presiding Judge of the Writ Bench on 9 April 1988 the filing of the civil suit could have been mentioned. For this conduct of the petitioner, the learned Judges dismissed the writ-petition summarily observing that simultaneous remedies from different forums are not contemplated in law. We do not find any wrong in such an obser­vation.

4. Dr. Hossain has, however, contended that the Election Commission is under a legal obligation to dispose of any matter like this according to ‘law in fair and impartial manner after hearing both the par­ties and not arbitrarily. In this case, the learned Counsel contends, when election was held in this Centre peacefully the Election Commission acted be­yond its jurisdiction in directing re-election without hearing the petitioner. Report of the Presiding-officer, Annexure-B to the Writ-petition, howev­er, shows that the polling was not peaceful, that 4 to 5 cocktails were exploded in the Polling-Station causing alarm among the voters, but he could not ad­journ or discontinue the polling because of pressure exerted upon him by some local influential persons. It clearly appears that conflicting opinions are there whether election was peaceful in this Centre. The Election Commission is quite competent under Rule 70 of the Union Parishads (Election) Rules, 1983, to pass any order including review of an order of any Election-officer for ensuring that an election is con­ducted honestly, justly and fairly. This rule does not require the Election Commission to hear any con­testing party before passing an order. Moreover, to determine disputed questions of fact a different forum has been created by law. We do not find anything to interfere.

The petition is dismissed.

Ed.

Source: 40 DLR (AD) (1988) 270

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