Appellate Division Cases
Dhaka University represented by. Professor A. K. Azad ( In C. A. No. 54/2001)
Chowdhury, Vice Chancellor Dhaka University and others……………… Appellants
Md. Giasuddin Ahmed …………………………….Respondents
Chowdhury @ Gias Kamal (In C. A. No. 54/2001)
Chowdhury and others.
Mr. Syed Ahmed and others. Petitioners (In C. P. No. 9) / 2001)
Md. Giasuddin Ahmed Chowdhury @ Gias Kamal Chowdhury and others……………………………………. Respondents
Mohmudul Amin Choudhury CJ
Mahammad Gholam Rabbani J
Mr. Justice Md. Ruhul Amin J
Mohammad Fazlul Karim J
JUDGEMENT DATE: Decmber, 1Oth, 2001
Article 46(17)(ii) section 46 sub-section (17) Article 20 of Dhaka University. & Article 52 of the first statute, Dhaka University Order, 1973, When any election is held in accordance with the provision of any statute that election can be questioned only under the provision of that statute. But when the election is held in violation of the provision of law such election can be questioned in any other forum and not in the forum as provided in that law…. (12)
Civil Appeal No. 54 of 2001 with Civil Petion for Leave to Appeal No.9 of 2001 ( From the judgment and order dated 12.7.2000 passed by the High Court Division in Writ Petition No. 2314 of 1999).Mr. Shafique Ahmed. Senior Advocate (Mr. Amiritl Islam, Senior Advocate with him), instructed bv Mr. Md. Nawab Ali, Advocate-on-Reconl…For appellants Mr. Moinul Hosein, Senior Advocate, (In C. A. No. 54/2001) instructed by Mr. Md. Aftab Hossain Advoate -on -Record. ..For respondent Nos. ].- 4. Respondent Nos. 5-29.: Dispensed with. (In C. A. No. 54/2001) Mr. Rokanuddin Mahnuid, Senior Advocate, instructed by Mr. Sharufuddin Chaklader Advocate-on-Record….For petitioners (In C. P. No.9/2001)
Respondents. (In C. P. No 9/2001) : Not represented.
1. Mahmudul Amin Choudhury C.J.: In this appeal leave was granted to consider the following:” That in view of the existence of the statutory provisions of filing election petition as provided in Article 46(17)(ii) of the first statute, the Dhaka University the learned Judges of the High Court Division committed an error of law in passing the impugned judgment and order dated 12.7.2000. He next contends that Article 52 of the Dhaka University order 973 having provided for an appeal to the chancellor the finding of the learned Judges of the High Court Division that the election petition being purely on law points the alternative remedy under Article 52 is not a bar to invoke writ jurisdiction for is interpretation of law is contrary to the principles of law enunciated in the case reported in 44 DLR(AD)305.
2. This appeal arose out of a judgment and order passed by a Division Bench of the High Court Division on 12.7.2000 in Writ petition No.2314 of 1999 wherein Rule was made absolute . The short fact leading to this appeal is that respondent Nos. 14 as writ petitioners challenged notification dated 18.6.1999 declaring the result of election of registered Graduates of Dhaka University. The election of 25 representatives to the senate by the registered graduates of the university was fixed to be held by notification dated 21.3.1999 in two stages naineK at the polling center outside Dhaka on 6th, lOt and
14th June, 1999 while in Dhaka on 15th and 16th June, 1999. Accordingly the election was held and in all 20,836 votes were cast in all the polling centres . The senate election of registered graduates for the academic year 1997- 1998 was first announced to be held by notification dated 25.6.1997 and Graduates of Dhaka University were asked to be
enrolled by 31st July, 1997. By successive notifications the present appellants extended the time of registration of Graduates as voters without showing any reason whatsoever. Respondent No. 1 in the writ petition issued instruction on 21.3.1999 to the effect that immediately after the polling the votes cast outside Dhaka to be brought to Dhaka in sealed packets for counting and accordingly the votes cast outside Dhaka were not counted at centres. In the said notification it was also mentioned that counting of all votes including Dhaka centres could be held continuously at the place mentioned in the notification. It is the further case of the writ petitioner that from the trend of counting of Dhaka votes it was clear that the candidates of the writ petitioners’ panel were leading. Suddenly some people became over active at the Teachers Students Centre (TSC) when final results were to be announced after close of the counting of ballots of Dhaka and outside centres. Police forces were mobilized, even armed personnel in civilian cloths entered the counting centres. Subsequently by notification dated 18.6.1999 the result of the election was declared under the signature of the Vice-Chancellor. It was further stated that counting of votes did not take place immediately after the poll was over at several centres out side Dhaka and thereby there was total violation of the provision of section 46 sub-section(17) of the first statutes and according to the writ petitioner it was no election in the eye of law.
3. The writ petition was contested by the present appellants and their case is that there was no violation of any provision of the statute and there was an agreement between contesting panels that counting of votes will take place in Dhaka and no grievance can be made against counting of vote of all the centres of outside Dhaka. Their further case is the in view of Article 52 of the Dhaka University Order 1973 the writ petition is not maintainable as this Article provides for efficacious alternative remedy which has not been availed of by the writ petitioners.
4. The High Court Division on consideration of the materials on record and on hearing the learned Advocate of both the sides by judgment dated 12.7.2000 made the Rule absolute. Leave was granted by this Division to consider the aforesaid
5. Mr. Shafique Ahmed, learned Counsel appearing on behalf of the appellants submits that when the statute provided for alternative and efficacious remedy the writ petition can not be maintained. He submits that Article 46(l7)(ii) provides that no election shall be called in question except by an election petition presented in accordance with the rule. He contends that the remedy of the writ petitioners if they arc so aggrieved at the result of the election is before the Election Tribunal constituted by the Vice-Chancellor under the provision of section 46(17)(ii)(e) and the High Court Division failed to appreciate that when an efficacious remedy is available to the writ petitioners they can not invoke the writ Jurisdiction. It is further submitted that Article 52 of the Dhaka University Order, 1973 provides that an aggrieved party may also prefer appeal to the Chancellor who may cause the matter inquired into by an inquiry commission but without taking recourse to this provision the write petitioners moved the High Court Division and obtained Rule which was wrongly made absolute. On these two grounds the appeal has been pressed by the learned Counsel appearing on behalf of the appellants. Mr. Shafique Ahmed further submits that the result of the election which was announced duly may not be interfered with unless it can be show that the way the election has been conducted has materially affected the result of the election. The respondent Nos. 1- 4 failed to show that the result of the election has been materially affected because of the counting of ballots in Dhaka alone.
6. As against this Mr. Moinul Hoscin , learned Counsel appearing on behalf of the writ petitioner-respondent Nos. 1- 4 submits that in this writ petition out concern is in respect of the interpretation of section 46( 17)(ii) of the First statutes and Article 52 of the order. It is submitted that if the election was held beyond the scope of law this may be uestioned in writ jurisdiction. It is the definite case of respondent Nos.l- 4 that election was not conducted in accordance with the provisions of University Order and the Statute. The way the election was conducted and held is not in accordance with the provision of law and as such the same can be questioned in writ jurisdiction as the election held is a nullity. Mr. Hosein submits that the conduct of the authority more particularly the vice- Chancellor is contrary to the provision of law and as such there is no bar in moving the High Court Division in its wrii Jurisdiction.
7. Article 21(1) provides that all graduates of the university of at least three years standing shall be entitled to have their names enrolled in register of registered graduates on payment of prescribed fees and all the disputes relating to compliance with the provision of the order, statutes and university Ordinance regarding registration of graduates shall be decided by the Chancellor. So if there is any dispute regarding enrolment of the graduates the final authority is the Chancellor. This Article has nothing to do with the conduct of the election. Article 20 of Dhaka University Order provided for the constitution of a senate. Article 20(1 )(k) provides that 25 representatives of registered graduates to be elected by such graduates from among themselves will form part of the University Senate and the provision of election is provided for in Article 46 of the first stattites which provides that the election of 25 such representatives to the senate shall be held on such date or dates after 3 1st August in the academic year in which the election is to held as may he fixed by the Vice-Chancellor. This Article 46 is the main Article as to the conduct of the election which provided that at the order of the Vice-Chancellor, the Registrar in addition to intimation by post under certificate of posting shall notify in two daily newspapers one in English and one in Bengali published from Dhaka certain particulars which are the date of publication of preliminary voters list and last date for objections and correction; the last date by which the nomination papers should reach the Registrar; date, time and place for scrutiny of nomination papers; the last date for withdrawal of nomination and date, time and places for casting and counting of votes. It has also been provided that final voter list shall be prepared by the Registrar
and keep it in his office for the purpose of reference in connection with the election. Electors may obtain copies of the final voters list from the Registrar on payment of prescribed fee. It is also provided that only those persons whose names are on the register of registered graduates on the dale ol the election shall be entitled to lake part in the election. It has been provided that gradates enrolled after 3 1st July of the year of election shall not be eligible for participation in the election. Sub-Article(3) of this Article also provided that if in extraordinary circumstances the election can not be held within the academic year it may he held in the following academic year and the registered graduates already enrolled in the previous Near shall he entitled to lake part in the election. Sub-section (9) provides that for the purpose of voting by physical presence of voters individually there will be as main polling centres as are determined by the Vice-Chancellor who will appoint one person as presiding officer to conduct the polling. Sub- Section! 16) provides that at the close of the voting the presiding Officer shall count
the votes cast for the candidates and Sub-Section( 17) provides that the Presiding officer shall prepare a report of the votes received by each candidate and the votes held to be invalid and send the report and the ballot papers to the Vice Chancellor who on having received the report from all the centres will cause the results of the election to be declared. Sub-Section( 18) of this Article provides thai the Vice Chancellor shall declare 25 candidates securing in order of succession the highest number of valid votes.
8. So from this it is very much clear how and in what manner 25 representatives of the registered Graduates of ihe Dhaka University are to be clcclcd to the Senate. It is clear that there shall be a notification issued by the Registrar at the order of the Vice Chancellor intimating publication of preliminary voters list, last date of submission of nomination papers, date time and place for scrutiny of the same, last date of withdrawal of nominations and final date and time for casting and counting of votes. Here in the present case initial notification was issued on 11.12.1994 vide annexure-1 to the writ petition wherein place of voting outside Dhaka have been mentioned and there was also an endorsement that addresses of the polling centres outside Dhaka would be intimated in due course. In this Annexure-1 it has been mentioned that the nomination papers are to be submitted with the Registrar by 15th March. 1995 and election outside Dhaka will he held on 30th April, 1995 and election outside Dhaka will he held on 30th April, 1995 and the polling will start from 10 A.M. and will continue up to 1 P.M. and thereafter counting will be held and the result would be intimated to the Vice Chancellor. So it appears that there was total compliance of Section 46( 1 )(i i of the first statutes. Then again another notification was issued intimating that nomination would be received on 21st April, 1999 and the election outside Dhaka would he held on 6th June, 1999 and in that notification also name of outside centres have been intimated. There was also a notification
Annexure-A that the election will be held on IOth June, 1999 and some other polling centres outside Dhaka and in both the centers the election will start from 9 A.M. and will continue upto 5 P.M. and in this notification it has been notified that after the polling is closed the ballot papers would be kept in a sealed packet and sent to the university authority and the counting will be held in Dhaka. So from . this notification it is clear that there was clear devi7 ation from the provisions of Section 46(l)(i)(e) of the first statutes. Subsequently election was conducted on the basis of this notification the result of which was notified on 18.6.1999 which has been in challenge in this writ petition.
9. Now the question is whether the election that was held/conducted in pursuance of Annexurc-A and the publication of the result thereof on 18.6.1999 can be construed as election conducted as per first statues. Section 46 of the first statutes provided that the Registrar at the order of the Vice Chancellor shall notify the date of publication of preliminary voters list, filing of nomination , scruti””< ny and the withdrawal and the date, time, place of casting of ballots and counting of the same. This Article also provides that at the close of voting the presiding Officer shall count the votes cast for each candidate. So it is clear at law that after close of polling the presiding officer shall count ballots and shall prepare a report of the vote received by each candidate and also of the vote held to be invalid and sent the report and the ballot papers to the Vice Chancellor who on receiving the same from all centres will cause result of the election to be eclared.
There is no provision in the statue that the ballot papers received by the presiding officers in respect of the polling station to be sent to Dhaka for counting there. The law provides that it must be counted by the Presiding Officers at the respective polling stations and then to submit a report to the Vice-Chancellor who on consolidation of the ballots of all the centres will declare the result which has not been done in the present case. The law as it stands has not authorized any authority to change the manner and method of casting of votes and counting of the ballots. From Section 46 it is clear that if there is a notification by the registrar at the order of the Vice Chancellor that casting of votes will at certain
centers outside Dhaka on a certain date and time the Presiding Officers are requited to count the ballots immediately after the close of polling and they are to send their reports to the Vice Chancellor in detail who in turn after consolidation of the result is requited to announce the result. But here in the present case it appears that though admittedly the polling in some centre took place outside Dhaka but hose were not counted there . These were sent to the Vice Chancellor and ballots were counted in the University premises and the result announced. This is contrary to the clear provision of Article 46 of the statute and a flagrant violation of the same.
10. There is another aspect of the matter that Article 46 of the first Statutes provides that the election of 25 representatives of the senate by the Registered Graduates shall be held on such date or dates after 31st August in the academic year in which the election is held as may be fixed by the Vice Chancellor. Admittedly the election that was held was for the academic year 1997-1098 and it was first announced to be held by notification dated
25.6.1997 and the Graduates were asked to enroll themselves by 31st July 1997. Thereafter by several notifications time for registration of the Graduates as voters were made on 24.7.1997. 3.8.1997, 28.8.1997. 28.9.1997. 27.10.1997 and 30.11.1997 and the last notification extending time for registration was announced on 30.10.1997 declaring that the last date for registration would be 4.12.1997. The election was to be held by notification dated 21.3.1999 in two stages namely at the polling centres outside Dhaka on 6th . 10th, and 14th June ’99 while in Dhaka on 15th and 16th June 1999. But Article 46 provides that such election should be held on such date or dates after 31st August in the academic year in which the election is held. So this Article provides that the election for the academic year 1997-1998 must be held within that academic year. The intention is that the next senate may take over the charge at the end of that academic year but in the present case though the election was for the academic year 1997 – 1998 the registration continued till 4.12.1997 and the election was held in 1999 which is bevond the period as prescribed by section 46. It has been argued that the authority may extend the period if necessary. Suh-Section(3) of this Section 46 provides that if in extraordinary circumstances the election can not be held within the academic year in question it may be held in the following academic year and the Registered Graduates already enrolled in the previous year shall be entitled to take part in the election. So the law has given ample power to the authority to shift the date of election of a particular academic year to subsequent academic year in extraordinary circumstances, but in the present case nothing has been produced either before the High Court Division or before this Division under what circumstance this election could not be held during the year in question. So the election held in 1999 for the year 1997-1998 is no election in the eye of law. That was held in violation of the provision of Section 46(3) of the First Statues.
11. As regards Counting of ballot papers outside Dhaka. Mr. Shafique Ahmed, learned Counsel appearing on behalf of the appellants submits that before the date of poll a meeting was held amongst the representatives of the parties on 11.6.1999 wherein it was decided that counting of all the centres would be held in Dhaka and the result will be announced accordingly. It appears from Anncxure -17 which is a resolution of that meeting that 15 persons including two Presiding Officers of teachers students polling centre and gymnasium polling centre. Proctor of University. Deputy Registrar (Administration-4) and Assistant Registrar along with some other persons attended the meeting wherein the said decision was taken. The learned Advocate appearing on behalf of the appellants submits that after this unanimous resolution it can not now be said that the counting of ballot papers in Dhaka of outside stations is illegal. But Article 46( 1 )(i)(e) provides that the notification as contemplated under this Article should contain the date and time and place of casting and counting of votes and in the initial notification place of counting of votes outside Dhaka has been notified which was done in accordance with the provision of sub-section (9) of section 46 and Sub-Section (16) of 46 provides that on the dose of the voting the presiding officer shall count votes cast for the andidates
and sub-Section (17) provides that the presiding officer shall prepare a report of the votes received by each candidate and send the same and the ballot papers to the Vice Chancellor who on receipt of the same from all the centres will cause result of the election to he declared. So on receipt of the result from each centre the Vice Chancellor will consolidate the same and then announce the result. The statute particularly Section 46( I )(i)(e). (9). (16) and (17)clearly provides that counting must be at the place of voting. If the polling is held outside Dhaka then the ballots must be counted by the Presiding Officers at those polling centres. There is no ambiguity in the law and as such there cannot be any compromise on any legal provision and Annexure17 dated 11.6.1999 can not give any authority to the Vice Chancellor to shift the counting to Dhaka from outside polling centres. Furthermore it appears that the person who participated in the meeting were not the candidates in the election, they were third parties and when such a decision was taken by third parlies this has no binding affect on the candidates and in such a situation acquiescence cannot be pleaded. So this resolution has not conferred any authority upon the Vice Chancellor to shift the counting of ballots to Dhaka. This is clearly against the provision of the Statutes. Furthermore sub-section (13) of this section has provided that voting at each centre shall take place under the direction, control and supervision of the presiding officer So when a presiding officer is appointed it is his duty to ensure the casting of votes and also counting of the same after close of the poll. But in the present case polling took place in some centres outside Dhaka but in view of resolution Annexure-17 sealed covers containing ballot papers were brought to Dhaka and counted here which is against the provision intention of the law. Having given our anxious thought over the provision of law we hold that the questioned election has been conducted not in accordance with the provisions of Dhaka University Order 1973 and the first Statues and this election is on election in the eye of law.
12. An objection was raised on behalf of the appellants on the maintainability of the writ petition in view of the provision of subsection (17)(ii) of the First Statues which provides thai no election shall be called in question except by an election petition as provided under this sub-section. It is true that there is a bar but when the election that was held is no election in the eye of law this provision has no manner of application and in such a case a person mal Chuwdliur. i Mahmudul Aniiii Choudhun C.J.I 1 ADC(2004 ) aggrieved may invoke the writ jurisdiction of the High Court Division. It has been argued thai when alternative remedy is a available the writ jurisdiction can not be invoked and in support of this Mr. Shafiquc Ahmed placed reliance in the case of , Imtiaz Ahmed Vs. Ghulam Ali reported in 15 DLR(SC) 283 wherein it has been held that where a right or liability is created by statue which gives a special remedy for enforcing it the remedy provided for by that statute must be availed of. Further it is submitted that shifting of place of counting can not by itself be a ground to hold that the election is no election in the eye of law .He submits that the aggrieved party must show that this shifting of the place if counting has materially affected the result of the election and in support of his submission he placed reliance in the case of Md. Enayet Ali Vs. Munsif. First Court. Khulna & Flection Tribunal and others reported in 34 DLR(AD) 146. It is true that shifting of the place of counting may be ordered in extraordinary circumstances but here there was no extraordinary circumstance. The only piece of paper available is Anncxure-17 which has not given any legal authority to the Vice chancellor to shift place of counting of votes and this Annexure has no backing of law. There was total noncompliance of the provision of the statue and this has made election no election in eye of law. When any election is held in accordance with the provision of any statute that election can be questioned only under the provision of that statute. But when the election is held in violation of the provision ol’ law such election can be questioned in any other forum and not in the forum as provided in that law. In the present case the election was held in derogation of the Dhaka University Order 1973 and the First Statutes. So this election is no election in the eye of law and as such the writ petition can be maintained.
13. Now the question is whether the election was held in accordance with law. Lease was granted to consider whether in view of the existence of the statutory provisions of filing election petition as provided Article 46(17)(ii)of the first statute the learned Judges of the High Court Division committed and error of law in passing the impugned judgment and order dated I2.7.200but when it is found that the election was conducted in erogation of the clear provision of law that election can not be construed as an election as ontemplated under the Statute and in such circumstances the election that was held and result ublished by the vice chancellor can be questioned in Writ jurisdiction. Reliance bas been placed in the case of Assessing officer, Narayanganj Range & others Vs. Burma Eastern Limited 1981 BLD(AD) 450. Here in the present case the writ petition was filed raising a question on the interpretation of certain provisions of University Order and the First Statutes and when such a question of law has been raised the writ petitioners can maintain their petition. This has been set at rest by this Division in the case of M.A.Hai Vs. Trading Corporation of Bangladesh reported in 40 DLR (AD)2006. So in View of outr consideration of the materials on record and the laws we hold that the High Court Division has not committed any wrong and illegality in holding that the writ petition is maintainable.
14. We have considered the submissions made by the learned Counsels of both the sides and gone through the judgment of the High Court Division as well as Dhaka University Order and the First Statutes and also perused the available materials and hold that the High Court Division has not committed any wrong and illegality in holding that the writ petition is maintainable and also making the Rule absolute.
15. There is, therefore, no merit in this appeal and the same is accordingly dismissed without cost .Connected Civil petition for leave to Appeal No.9 of 2001 is also dismissed.
Source : I ADC (2004), 71