B. D. Habibullah Vs. Election Commission and ors.

B. D. Habibullah (Petitioner)

Vs.

Election Commission and ors. (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ahmed J

MH Rahman J

ATM Afzal J

Judgment

June 11, 1989

Words & Phrases

The official note processed by secretary of the election commission and the election commission arriving at a decision, on such note later on cannot be said to be order of the secretary as because the impugned order was the order that emanated from the election commission………..(3)

Cases Referred to:

Vine Vs. National Dock Labour Board, 1956 Volume 3 All England Law Reports 939-1956 AC 488.

Lawyers Involved:

Dr. Kamal Hossain, Senior Advocate, M.A. Wahab Miah, Advocate with him, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Petitioner.

Syed Ishtiaq Ahmed, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-record — For the Respondent No. 8.

Civil Petition for Leave to Appeal No. 258 of 1989.

Judgment:

Badrul Haider Chowdhury J. – In this pe­tition for leave the only question is whether the order of the Election Commission could be termed as of no legal effect as it suffers from malice and being coram non-judice.

2. There was election on 10.2.88 and the Elec­tion Commission directed to re-poll in two centres. We are concerned with Joygunnessa High School Polling Centre. It appears that the Election Com­mission directed the acceptance of result submitted by the Presiding Officer. Dr. Kamal Hossain referred to the Annexures at page 121 which bears a note by the Secretary to the Election Commission dated 29.3.88 to the effect “Seen, we may accept result as given in the Centre and no re-poll be taken in Joygunnessa High School Centre.” It appears that the Chief Election Commission and the member en­dorsed the view on 31.3.88. Dr. Kamal Hossain can­vassed that this power could not be delegated to the Secretary to the Election Commission and submit­ted that the Election Commission as defined in the Constitution does not mention the Secretary as the member of the organisation. The learned Counsel re­ferred to the decision Vine v. National Dock Labour Board reported in 1956 Volume 3 All England Law Reports 939-1956 AC 488 wherein the House of Lords considered the question of the delegation of quasi judicial disciplinary powers and found not only judicial functions cannot be delegated but in some matters of administrative duty also such delegation is not permissible. We have no quarrel with the princi­ple laid down in the aforesaid decision but we would like to point out what Lord Somervell of Harrow has observed:

“There are, on the other hand, many admin­istrative duties which cannot be delegated. Appointment to an office or position is plainly an administrative act. If under a statute a duty to appoint is placed on the holder of an office, whether under the Crown or not, he would, nor­mally, have no authority to delegate. He could take advice, of course, but he could not, by a minute, authorise someone else to make the ap­pointment without further reference to him.” (emphasis added)

3. In the present case the Election Commis­sion arrived at a decision on the note which was pro­cessed by its office and then passed their own deci­sion two days later. No exception can be taken to such procedure because it could not be said that it was the order of the Secretary to the Election Com­mission. The impugned order was the order that ema­nated from the Election Commission as such.

In the result, this petition is, therefore, dis­missed.

Ed.

Source: 42 DLR (AD) (1990) 218

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