Dr. Md. Shahjahan Advocate Vs. Election Commission and others (Md. Ashfaqul Islam, J.)

Bangladesh Nationalist Party (BNP) sought Nomination from his party to contest the 9^th Parliamentary Election but his political party did not nominate him as a candidate and nominated the added respondent No.8, Mr. Md. Hannan for the purpose.

1. 4.          Since 30.11.2008 was the last date for filing Nomination paper for the election and as the petitioner did not get Nomination from his party, he failed to file the same on that date with the Returning Officer and subsequently on 02.12.2008 he got party nomination to file the same with the returning officer Comilla. Under the situation, he filed writ petition No.9708 of 2008 and obtained a direction upon the Returning Officer to allow him to submit Nomination paper before expiry of last date i.e. 4.12.2008. On that date the petitioner failed to submit the Nomination paper  as per the ad-interim  order passed in Writ petition No.9708 of 2008 and then he filed the present writ petition No.9875 of 2008 praying for an interim direction upon the Returning Officer to allow him to submit Nomination paper and the High Court Division on 11.12.2008 without issuing any Rule passed an ad-interim order directing the Returning Officer to accept the Nomination paper of the petitioner after scrutiny (Annexure – D to the supplementary affidavit  filed dated 4.12.2008 by the petitioner). The Returning Officer rejected the Nomination paper of the petitioner on 12.12.2008 and also rejected the nomination paper of the respondent No.7, Md. Harunur Rashid and allowed the same of the added respondent No.8 by a single order dated 04.12.2008 as evidenced respectively by Annexure ‘F’ and Annexure ‘C’ of the supplementary affidavit dated 14.12.2008 filed by the petitioner. On 18.12.2008 Rule was issued in the present writ petition No- 9875 of 2008 with a direction upon the respondent No-1 and 6 to treat the Nomination paper of the petitioner as valid.
2. 5.          Meanwhile the respondent No.7 Harunur Rashid being aggrieved by the order of the Returning Officer filed appeal before the Election Commission being Appeal No.75 of 2008 challenging the order of the Returning Officer rejecting his Nomination paper. He also filed another appeal before the Election Commission being Appeal No.56 of 2008 challenging the order of acceptance of the Nomination paper of the added respondent No.8 Mr. Hannan by the Returning Officer. The Election Commission by order dated 10.12.2008 allowed both the appeals preferred by the respondent No.7 declaring his Nomination paper  to be valid and rejecting the Nomination paper  of the added respondent No.8 as invalid (Annexure -H) of the supplementary affidavit  dated 27.9.2009 filed by the petitioner.
3. 6.          The petitioner instead of challenging before the Election Commission, the order of cancellation of his Nomination paper by the returning officer dated 12.12.2008 as it was done by the respondent No.7, moved the instant writ petition questioning the acceptance of the Nomination paper of the respondent No.7 by the Election Commission and also obtained ad-interim order that directed the Election Commission to treat his Nomination paper as valid.
4. 7.          Be it mentioned that the added respondent No.8 at the relevant time by filing writ petition No.9904 of 2008 challenged the order of the Election Commission dated 10.12.2008 rejecting his Nomination paper  in Appeal No.56 of 2008 but the High Court Division summarily rejected the said writ petition by order dated 15.12.2008. He then filed another writ petition being Writ Petition No.9905 of 2008 challenging the order of the Election Commission allowing the Nomination paper of the respondent No.7 in Appeal No.75 of 2008, which was also summarily rejected by the High Court Division on 15.12.2008. Thereafter he filed Election Petition No.07 of 2009 before the High Court Division challenging the National Parliamentary election held on 29.12.2008 and the High Court Division by the judgment and order dated 17.05.2009 dismissed the said Election Petition.
5. 8.          The petitioner Dr. Md. Shahjahan did not move any application before the Election Commission against the order of the Returning Officer canceling his Nomination paper in the manner as it has been done by the respondent No.7 and the added respondent No.8. He has directly come before us under Article 102 of the Constitution.
6. 9.          That being the background, we are to settle the issue whether the petitioner has any locus standi to file the instant writ petition directly under Aticle 102 of the constitution in the facts and circumstances of the case.
7. 10.      This writ petition has been appearing in the daily cause list for quite a long time but no one appeared for the petitioner though the matter came up for hearing in the list with the name of the learned Advocate appearing for the petitioner. However, Mr. Ahsanul Karim the learned counsel for the respondent No.7 submits that the instant case is covered by the decision of the Appellate Division and for that reason this writ petition can be decided by us even without hearing the petitioner.
8. 11.      Mr. Karim mainly argued that the writ petition itself is not maintainable. In elaborating his contention he submits that the petitioner before issuance of the Rule on 18.12.2008 has moved before the Single Vacation Bench on 11.12.2008 and got the ad-interim order and almost at the same point of time the respondent No.7 filed two appeals before the Election Commission against the order of rejection of his Nomination paper  and acceptance of the Nomination paper  of the added respondent No.8 Mr. Hannan by the returning officer and those appeals were allowed by the Election Commission on 10.12.2008. The added respondent No.8 challenged the decision of the Election Commission dated 10.12.2008 in two writ petitions viz writ petition No. 9904 of 2008 and writ petition No. 9905 of 2008 and both the petitions were summarily rejected by this Division against which he moved Civil Petition For Leave To Appeal No.  1009 of 2008 before the Appellate Division which was eventually not pressed by him.
9. 12.      But the petitioner did not disclose that his Nomination paper was rejected by the Returning Officer on 12.12.2008. Therefore, Mr. Karim submits that the petitioner could have proceeded before the Election Commission against the decision of the Returning Officer rejecting his Nomination paper in the manner as it was done by the respondent No.7 and without doing so he has directly come under Article 102 of the Constitution which is admittedly against the decision of the Appellate Division on the point. He placed reliance on the decisions reported in A.F.M. Shah Alam -V- Mujibul Hoque & others 41 DLR (AD) P-68, 48 DLR (AD) P-208 in support of his contention as a whole.
10. 13.      Besides, placing reliance on the decision of Government of Bangladesh vs. Sheikh Hasina, 60 DLR (AD) 90 he further submits when a writ petition can be decided on a sole ground, this Division is not required to address any additional ground other than the said sole ground.
11. 14.      He further submits that the election was held on 29.12.2008 in which the respondent No.7 came out successful securing 88 lacs votes by defeating his nearest rival who secured 81 lacs votes. But the candidate who lost in the election against the respondent No.7 did not challenge the said election thereby meaning that the election was fair. Therefore, under no circumstances the instant petition filed by the petitioner can be considered to be maintainable.
12. 15.      Upon over all condition of the case, he concludes that with the lapse of time this writ petition has also become infractuous.
13. 16.      Be that as it may we have heard the Learned counsel for the respondent at length and considered his submissions. Let us be very specific that this matter came up for hearing on several days but no one appeared for the petitioner even the matter appeared in the list with name of the advocate for the petitioner. Since the matter is covered by the decision of the Appellate Division in Shah Alam’s case we hold that we can dispose of the writ petition without the presence of the petitioner. (Underlinings are mine)
14. 17.      In the landmark decision of A. F. M. Shah Alam Vs. Mujibul Haq and others 41 DLR(AD) 68 our Appellate Division with clarity categorized the issues to be followed in the election process (in case of local government election). His Lordship Justice Badrul Haider Chowdhury observed as under:

    “(1) Under rule 70 read with Section 24 of the Ordinance the Election Commission has been vested with plenary, supervisory and discretionary jurisdiction to oversee that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules.

    (2) In so doing it may pass any order, unless specifically barred, including an order for repoll, acceptance/consolidation of result, review etc. on the basis of materials before it. The observance of the rule of audi alteram partem though desirable in some circumstances is not an invariable pre-condition for the validity of such order.

    (3) The jurisdiction of the High Court Division under Article 102 of the Constitution can not be invoked except on the very limited ground of total absence of jurisdiction (coram non-judice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70 because (Underlinings are mine) :

(a) the real and larger issue of completion of free and fair election with rigorous promptitude for timely emergence and functioning of elective bodies must take precedence over settlement of private disputes.

(b) all election disputes must wait pending completion of the election and be taken to the special forum created under the Election Law itself for their resolution.

(c) almost invariably there will arise dispute over facts which cannot and should not be decided in an extraordinary and summary jurisdiction of writ.”

1. 18.      The ratio decidendi of the decision of Shah Alam’s case that no step in the election process can be challenged under Article 102 of the Constitution in the High Court Division unless the impugned order passed by the authority concern is corum nonjudice or order is afflicted with malice in law (in case of local government election) has been also made applicable in case of parliament and presidential election held under the Constitution. In the case of A.K.M. Maidul Islam vs. Bangladesh Election Commission and others 48 DLR (AD) 208 Justice Mustafa Kamal observed on the point:

“In the case of AFM Shah Alam vs. Majibul Huq and others, 41 DLR (AD) 68, this Court has in very clear terms laid down that in local government elections no step in the election process can be challenged under Article 102 of the Constitution in the High Court Division unless the impugned order passed by the authority concerned is coram non judice or is afflicted with malice in law. This decision of ours is equally if not more forcefully applicable to parliamentary and Presidential elections held under the Constitution. The petitioner has neither alleged coram non judice nor malice in law in the writ petition.”

1. 19.      The Constitution vests the superintend-dence, direction and control of the preparation of the electoral rolls for the presidential and parliamentary elections and conduct of such elections in the Election Commission. Election is a long, elaborate and complicated process which starts with the notification for holding the elections and ends with the declaration of the result of polling in the manner prescribed by law. The Commission has to supervise, control, and direct each and every step of the process to ensure free and fair election and the Commission must be deemed to have all the power and discretion to ensure free and fair election as that is the manifest intendment of the Constitution in providing for the Commission. According to the decision in Shah Alam the High Court Division can interfere with the decision of the Commission when it is coram non judice or vitiated by malice in law. In judging whether a decision is vitiated by malice in law, the court does not consider the adequacy of the materials but examines whether it is arbitrary.
2. 20.      In the case in hand we have found that the petitioner did not even disclose that his Nomination paper was rejected by the Returning Officer on 12.12.2008. The petitioner could have proceeded before the Election Commission against the decision of the Returning Officer rejecting his Nomination paper as it was done by the respondent No.7 and for that reason, the petitioner had certainly misdirected himself in bringing the instant writ petition admittedly against the decision of the Appellate Division in Shah Alam’s case as referred to above and on that score this petition itself is not maintainable.

(Underlinings are mine)

1. 21.      Let us now digress to another aspect of the case. When a writ petition can be decided by deciding one issue only no other point need be decided. In the decision of Kudrat-e-Elahi Panir vs. Bangladesh reported in 44 DLR (AD) 319 it was held:

“Therefore the broad decision that a law can be declared void in case of a conflict with any provision of Part II of the constitution was uncalled for and made on hypothetical facts. This, as a rule, the Courts always abhor. The Court does not answer merely academic question but confines itself only to the point/points which are strictly necessary to be decided for the disposal of the matter before it. This should be more so when Constitut-ional questions are involved and the Court should be ever discreet in such matters. Unlike a civil suit, the practice in Constitutional cases has always been that if the matter can be decided by deciding one issue only no other point need be decided.”

(Underlinings are mine)

1. 22.      Reflection of this decision could also be found in the case of Bangladesh vs. Sheikh Hasina 60 DLR (AD) 90 as referred to above.
2. 23.      Lastly, we also found substance in the submissions of the learned counsel for the respondent No.7 that the election of 9^th parliamentary was held on 29.12.2008 in which the respondent No.7 came out successful from a particular constituency. His nearest candidate who was defeated in the election did not challenge the election. Therefore, with the lapse of time this writ petition filed by the petitioner has also become infructuous.
3. 24.      In the light of the decisions of our apex court and on a critical appraisal of the entire case from the very beginning till the decision of the election held on 29.12.2008 we have viewed the respective cases of the petitioner, the respondent No.7 and the added respondent No.8 from a different perspective and with objectivity. On the premises, we hold that this rule should be discharged on the ground of maintainability as well as being infructuous.

        In the result, this Rule on the two counts as mentioned above is discharged however, without any order as to cost.

Ed.

HIGH COURT DIVISION

(Criminal Revisional Jurisdiction)

Code of Criminal Procedure (V of 1898)

Section 561 A

Securities Exchange Ordinance (XVII of 1964)

Taking into consideration the allegation made in the petition of complaint and Section 17 of the Securities Exchange Ordin-ance, 1969 it appears that those allegation