HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Mrs. Justice Farah Mahbub J } Kartic Das Gupta……………………………………………….
Mr. Justice Farid Ahmed J }……………………………………………………………Petitioner
} Election Commission and others
} Mr. Mazbah Uddin……………………………….
15.02.2011 } VS
} Govt. ofBangladeshand others………………….
Constitution of Bangladesh, 1972
Electoral Rolls Act (Act No. 6 of 2009)
Section 7 (2) (4) and 11 (1)
From clause 9 of the said circular it is evident that said special scrutinizing method adopted for the year 2009-2010 voter list did not cover Moheshkhali pourashava, district Cox’s Bazar. In view of the stated position of fact pourashava election of Cox’s Bazar particularly Cox’s Bazar Sadar, Teknaf, Moheshkhali and Chakaria was not held on 27.1.2011 with update (nvjbvMv`) revised electoral roll. However, proviso to section 11(1) of the Act no. 6 of 2009 says if the electoral roll is not revised as per clause (a),(b) and (c) the validity or continued operation of the electoral roll shall not thereby be affected. Said provision of law is not under challenge in the present Rules. As such even though electoral roll of 2007-2008 has not been updated the validity and the continued operation of the earlier electoral roll shall remain in force
Upon scrutinizing the information and excluding the false voters the Deputy Secretary (Election) fixed 21.03.2010 for hearing objection thereto in view of section 7(2) of the Act no. 6 of 2009. Ultimately upon hearing the objection on 21.03.2010 final voter list have been published on 09.09.2010 (Annexure-8). As such, allegation of the petitioners of holding pourashava election of Cox’s Bazar district without publishing final electoral roll under section 7(4) of the Act no. 6 of 2009 falls through
The pourashava election of Cox’s Bazar Sadar, Teknaf, Moheshkhali and Chakaria, district Cox’s Bazar held on 27.02.2011 is declared as valid and lawful in the eye law. …………………… (34 to 36)
Constitution of Bangladesh, 1972
In the light of Annexure-2 and 3 respectively of the affidavit-in opposition filed by the respondent no.2 it is an admitted position of fact that across Bangladesh-Myanmar border many citizens of Myanmar (Rohingas) have encroached Bangladesh territory (un-officially more than 4 lacs) with a view to be enlisted in the electoral roll; even to obtain national I.D. card and to certain extent they have become successful. Since the pourashava election of Cox’s Bazar district has already been held, at this stage it is rather difficult to find by this court who are the dis-qualified electors, which involves serious question of fact and hence, cannot be entertained exercising writ jurisdiction. As noted above, the electoral roll of 2007-2008 was not scrutinized under special method adopted by the Commission; also the electoral roll of 2009-2010 with regard to Moheshkhali pourashava. As such, in order to protect our economic, social and above all national security Election Commission is hereby directed to initiate process immediately under section 11(2) of the Act no. 6 of 2009 towards deletion of the name of Rohingas from the finally published electoral roll of 2007-2008 of Cox’s Bazar Sadar, Teknaf, Moheshkhali and Chakaria pourashavas of district Cox’s Bazar and also the electoral roll of 2009-2010 of Moheshkhali pourashava in accordance with law and to complete the said process within a period of 6 (six) months from the date of receipt of this judgment and order. On completion of the said process the Election Commission is also directed to intimate this Court the result thereof through the office of the Registrar
Constitution of Bangladesh, 1972
Electoral Rolls Act (Act No. 6 of 2009)
Section 10 and 11 (2)
The qualified persons who are, however, entitled to be enlisted in the electoral roll may have their name included in the electoral roll in compliance of section 10 of the Act no. 6 of 2009
With the above observations and directions both the Rules are disposed of.
…………………. (43 to 44)
Abul Kalam Shamsuddin Vs. Anti-Corruption Commission, represented by its Chairman, Head Office; Segunbagicha,Dhakaand others reported in 14 MLR (AD) 153, Basic Engineering Limited Vs. Bangladesh and 3 others reported in 2006 (XIV) BLT(HCD)328, Kazi Mukhlesur Rahman Vs. Bangladesh and another reported in 26 DLR(AD)44 Ref..
Mr. Rafiqul Hoque, Senior Advocate, with Mr. Ahsanul Karim, Advocate with Mr. Jahangir Kabir, Advocate
— For the Petitioner (in W.P. no.9348/10).
Mr.Md.Hafizur Rahman Khan, Advocate
…….. For the Petitioner (in W.P. no.601/11)
Mr. Tawhidul Islam, Advocate ….. for the Respondent no.2. (in both the writ petitions)
Mr. Fida. M. Kamal, Senior Advocate with Mr. Kaisar Kamal, Advocate
……. For the added respondent nos. 11-16. (in W.P. no.9348/10)
Mr. A.J. Mohammad Ali, Senior Advocate with Mr. Rubaiat Hossain, Advocate
……… For the added respondent no.10.(in W.P. no.9348/10)
Mr.Md.Bodruddoza withMr.Md.Earul Islam, Advocate
……….. For the added respondent no.9.(in W.P. no.9348/10)
Farah Mahbub, J:
Since common question of law and facts are involved in both the writ petitions as such those have been heard together and are being disposed of by this single judgment.
2. In these Rules Nisi issued under Article 102 of the Constitution of the Peoples’ Republic of Bangladesh the respondents have been called upon to show cause as to why the impugned notification vide memo no.wbKm/(‡cŠiÐ1/1(24)‡cŠitmvavt wbe©vtcwit/2010/78 dated 02.12.2010 including the names of pourashavas namely Cox’s Bazar Sadar, Chakaria, Teknaf and Moheshkhali fixing 19.1.2011 for holding pourashava election without preparing a fresh voter list excluding the Rohingas, the citizen of Myanmer, should not be declared to have made without lawful authority and hence, of no legal effect and why the respondents should not be directed to prepare a fresh voter list excluding the names of the non-Bangladeshis (the Rohingas) and including the qualified voters.
3. In writ petition no. 601 of 2011 the petitioner has also challenged the non-inclusion of the name of about 1000 other Bangladeshis including the petitioner in the electoral roll to be declared as without lawful authority and of legal effect.
4. At the time of issuance of the Rule Nisi in writ petition no. 9748 of 2010 operation of the impugned notification dated 2.12.2010 was stayed.
5. Facts, in brief, in connection with writ petition no.9748 of 2010 are as follows:
The petitioner is a voter of Cox’s Bazar Municipality with voter no.221373362050 and being a permanent citizen of Bangladesh has preferred this application in public interest contending, inter alia, that in exercise of power as conferred in section 7 of the ÔÔ†fvUvi ZvwjKv AvBb, 2009ÕÕ, (Act no.6 of 2009) (in short, the Act) the Election Commission (in short, the Commission) is duty bound to prepare a voter list of those voters who are the citizen of the country for every franchise area for holding elections; that in exercise of power as provided in section 17 of the ÔÔ¯’vbxq miKvi (†cŠimfv) AvBb, 2009ÕÕ (Act 58 of 2009) and rule 4 of the ÔÔ¯’vbxq miKvi (†cŠimfv) wbe©vPb wewagvjv, 2010ÕÕ a final voter list has to be prepared and published by the said Commission for every pourashava for holding pourashava election. In the year 2007 the Commission had prepared a draft electoral roll for the Cox’s Bazar District. The District administration of the said district observed that in the aforesaid draft voter list a huge number of citizen ofMyanmar (Rohingas) had been included. To that effect the Deputy Commissioner, Cox’s Bazar vide memo no. Jeni-au/Cox/10(1)/Chha: Sa:Bho:Ta:Ho;/2009/226 dated 22.06.2010 (Annexure-B) and memo no. Jeni-au/Cox/10(1)/Chha:Sa:Bho: Ta:Ho;2009/344 dated 23.10.2010 (Annexure-C) addressing the respondent no.3 as well as the Secretary, Ministry of Foreign Affairs requested to take necessary steps towards exclusion of disqualified electors, but the Commission did not pay any heed to the same. The Commission, however, adopted a new special Form only for Cox’s Bazar district to examine the genuineness of the listed voters in the year, 2009 by issuing a circular bearing memo no. wbKm/wbÐ1/‡fvZvÐ1/nvjbvMv`/2009(AskÐ1)589 dated 01.09.2009. In the process of re-examination of the voters held in 6 (six) upazillas of Cox’s Bazar district 62,509 voters were examined under random sampling and amongst the said numbers 45,859 voters were found as citizen ofMyanmar. Accordingly, the said number of voters were excluded from the said list. That in the meeting of District Law and Order Committee of Cox’s Bazar district held on 28.11.2010 the issue of inclusion of huge number of citizen of Mayanmar (Rohingas) in the present voter list had been discussed and a resolution had been duly adopted by the said Committee for taking necessary steps towards rectifying the present voter list of Cox’s Bazar district. Several other organizations as well as the inhabitants of Cox’s Bazar Pourashava gave their representations to the Chief Election Commissioner, respondent no. 2 to take effective steps in the matter, but there was no response. Ultimately, the Commission without correcting the existing electoral roll declared the schedule of pourashava election of Cox’s Bazar district on 02.12.2010. Being aggrieved by and dissatisfied with the petitioner has preferred the instant application and obtained the present Rule.
6. The petitioner in writ petition no. 601 of 2011 reiterating the statements so made in writ petition no. 9748 of 2010 further contended that about 1000 (one thousand) Bangladeshis along with the said petitioner though are qualified to be enlisted as voters but till date they have not been included in the electoral roll inspite of the fact that on the application of the petitioner and others the Registration Officer issued receipts of registration for enlisting their name as electors (Annexure-B). Hence, the application.
7. Mr. Rafiqul Hoque, the learned Senior Advocate appearing with Mr. Ahsanul Karim and Mr. Jahangir Kabir, the learned Advocates for the petitioner in writ petition no.9748 of 2010 submits that from the correspondences (Annexure-2 and 3 respectively to the affidavit-in opposition filed by the respondent 2) it is evident that more than 4 (four) lacs Rohingas, the citizen of Myanmar, have encroached Bangladesh territory and are now residing in the country on obtaining voter list, even passports. Accordingly, he submits that since they are not the citizen of Bangladeshhence, they cannot be enlisted as voters in order to apply the right of franchise being violative of section 7(1)(ka) of the Act no. 6 of 2009 as well as section 17(2)(ka) of the Act no. 58 of 2009. He further goes to submit that although the Deputy Commissioner, Cox’s Bazar vide memo dated 22.06.2010 brought it to the notice of the Commission contending, inter-alia, that about 10% voters of Cox’s Bazar district in the voter list of 2007 are Rohingas, but the Commission did not take any steps for up dating the same. He next contends that the Commission has held the pourashava election on 27.1.2011 on the basis of electoral roll prepared in the year 2007 whereas under section 7(4) of the Act no. 6 of 2009 it was incumbent on the part of the Election Commission to publish final voter list after amendment or revision to that effect. Referring to the annexures so have been annexed to the affidavit-in-opposition filed by the respondent no.2 he submits that the voter list prepared in the year 2009 though has been amended, but no final list has yet been published. The said defect was within the knowledge of the Commission, in spite of that the Commission has held the paurashava election of Cox’s Bazar District in clear violation of section 7(4) of the Act no.6 of 2009. He further goes to submit that section 17(1) of the Act no.58 of 2009 clearly provides that for every ward the Commission shall frame a voter list; section 17(2) further provides that no person shall be entitled to be a voter unless he is a citizen of Bangladesh; rule 4(1) of the ÔÔ ¯’vbxq miKvi (†cŠimfv) wbe©vPb wewagvjv, 2010 in this regard provides that subject to sub-section (2) the District Election Officer shall frame voter list for every pourashava; rule 4(2) also states that the voter list has to be framed in such a manner that there must be separate voter list for male and female for every ward. In this context he contends that the electoral roll prepared in the year 2007 is meant for ÔÔwbe©vPb GjvKvÕÕ; whereas rule 4 of the said Rules means ÔÔ‡fvUvi GjvKvÕÕ. Accordingly, he argues that no such voter list has been prepared by the Commission in compliance of the said provision of law. Hence, holding of pourashava election of the respective pourashavas of Cox’s Bazar District with the voter list prepared not in accordance with law suffers from malice in law, consequent thereto the election held on 27.01.2011 is without jurisdiction. The learned Advocate further contends that by the impugned notification dated 02.12.2010 the Commission having decided to hold the election of 4 (four) Pourashavas of Cox’s Bazar district declared the schedule with time frame for stages such as submitting nomination papers, withdrawal of nomination paper and the date of election. The petitioner has challenged the said notification for holding of election without preparing a fresh voter list in accordance with law. During the pendencey of the Rule Nisi the subsequent notification dated 20.12.2010 was issued, which is, in fact, the continuation of the original notification giving revised time frame for holding the self-same election. From the said sequence of facts it is clearly apparent that the subsequent notification being continuation of the original schedule as such the Rule has not become infructuous. In this regard drawing attention to Annexure-G to the supplementary affidavit he contends that the petitioner has annexed the new notification by way of supplementary affidavit. Accordingly, he submits that this Hon’ble Court for the cause of justice may consider the subsequent events. In support of the said contention the learned advocate has referred the decisions in the cases of Abul Kalam Shamsuddin Vs. Anti-Corruption Commission, represented by its Chairman, Head Office; Segunbagicha, Dhaka and others reported in 14 MLR (AD)153; and the case of Basic Engineering Limited Vs. Bangladesh and 3 others reported in 2006 (XIV) BLT(HCD)328. Mr. Hoque further goes to submit that the petitioner is a citizen of Bangladesh and as a citizen of the country he has every right as well as interest in every part of the land to secure the electoral roll. In this regard referring to Article 7(1) of the Constitution he submits that all powers in the Republic belongs to the people, the citizen of Bangladesh and as such if any foreigner is included in the electoral roll of any part of Bangladesh the supreme right of the citizen as guaranteed in Article 7 of the Constitution will be infringed. Therefore, as citizen of Bangladesh the petitioner has locus-standi to maintain this writ petition. In support of the said contention the learned Advocate has referred the decision in the case of Kazi Mukhlesur Rahman Vs. Bangladesh and another reported in 26 DLR(AD)44.
8. Mr.Md Hafizur Rahman Khan the learned Advocate appearing on behalf of the petitioner in writ petition no.601 of 2011 adopts the submission so have been advanced in writ petition no. 9748 of 2010.
9. Conversely, Mr. Fida M.Kamal, the learned Senior Advocate appearing with Mr. Kaiser Kamal for the added respondent nos.11-16, Mr. A.J. Mohammad Ali the learned Senior Advocate appearing with Mr. Rubaiyat Hossain for the added respondent no.10 and Mr. Md. Bodruddoza the learned Advocate appearing with Mr. Earul Islam, for the added respondent no.9 made similar line of arguments contending, inter-alia, that it is the settled principle of law that once the notification is published declaring election schedule, the process of election commences and according to the dictum of the Appellate Division once process of election is initiated it cannot be challenged under writ jurisdiction except in the case of quorum-non-judice and malice in law. In the present case, it has been contended that the pourashava election of Cox’s Bazar Sadar, Teknaf, Moheshkhali and Chakaria having been held in accordance with law with publication of election result in gazette this Rule is liable to be discharged as being not maintainable since the petitioner has failed to show that there has occasioned malice in law or that the election was held without jurisdiction. It has further been contended that the petitioner has challenged the notification dated 02.12.2010 for holding the election of the respective pourashavas of Cox’s Bazar district, but the order of stay of the notification passed by one of the Benches of this Division having been stayed by the Appellate Division a fresh notification was published on 20.12.2010 pursuant to which election of the respective pourashavas was held on 27.01.2011. Hence, in effect the first part of the Rule has become infructuous. So far the second part of the Rule so as to exclude the Rohingas from the voter list it has been argued referring to sections 10 and 11 of the Act no.6 of 2009 that correction and revision of the electoral roll is an on going process to be undertaken by the Election Commission in every year at a certain period excluding the period during which the process of election is going on and if there be any allegation of inclusion of a disqualified person in the electoral roll the Commission either following the prescribed form as mentioned in the ÔÔ‡fvUvi ZvwjKv wewagvjv, 2008ÕÕ or adopting its own special method on recording its reason under section 11(2) of the Act no. 6 of 2009 shall delete the name therefrom. But for wrong inclusion of disqualified person shall not go to invalidate the voter list. As such, the pourashava election held with the said electoral roll cannot be called in question.
10. The moot question to be resolved in the present Rules is whether pourashava election of Cox’s Bazar Sadar, Teknaf, Moheshkhali and Chakaria, district Cox’s Bazar held by the Election Commission allegedly with defective electoral roll without publishing final voter list as is required under section 7(4) of the Act no. 6 of 2009 ; for having included Rohingas as voters in the respective areas in violation of section 7(1)(ka) of the Act no. 6 of 2009; and also for having not prepared separate electoral roll for pourashava in compliance of “ ¯nvbxq miKvi (‡cŠimfv) wbe©vPb AvBb,2009 ” (Act 58 of 2009), can be termed as lawful.
11. ÔÔ¯nvbxq miKvi (‡cŠimfv) wbe©vPb AvBb, 2009ÕÕ (Act, 58 of 2009) promulgated on 06.10.2009 regulates pourashava election of Mayor as well Counsellors. Section 17(1) of the said Ain provides as under-
“17| ‡fvUvi ZvwjKv|-(1) cÖwZwU Iqv‡W©i Rb¨ wbe©vPb Kwgkb KZ©„K cÖYxZ GKwU †fvUvi ZvwjKv _vwK‡e| ”
12. For every ward there shall be an electoral roll prepared (cÖYxZ) by the Election Commission. Section 120 of the said Act authorises the Commission to frame rules for the election of Mayors and Counsellors. In exercise of that power the Commission has framed ÔÔ¯nvbxq miKvi (‡cŠimfv) wbe©vPb wewagvjv, 2010’’ vide notification dated 05.10.2010 where rule 2(24) defines the word ÔÔ‡fvUviÕÕ which means:
“2(24) ÔÔ‡fvUvi” A_© Ggb GKRb e¨w³ hvnvi bvg mswkó Iqv‡W©i †fvUvi ZvwjKvq AšÍfy©³ Av‡Q;ÕÕ
13. The word “ ‡fvUvi ZvwjKv ” has been defined in rule 2(25) as-
ÔÔ2(25) ÔÔ‡fvUvi ZvwjKvÕÕ A_© †fvUvi ZvwjKv AvBb, 2009 (2009 m‡bi 6bs AvBb) Gi aviv 3(Q) G msÁvwqZ †fvUvi ZvwjKv;ÕÕ
14. In other words, the final electoral roll prepared under Act no. 6 of 2009 is the ÔÔ‡fvUvi ZvwjKvÕÕ of the ÔÔ¯nvbxq miKvi (‡cŠimfv) wbe©vPb wewagvjv, 2010’’ framed on 5.10.2010. Rule 4 further provides as under-
ÔÔ4| ‡fvUvi ZvwjKv cÖYqb|-(1) Dc-wewa (2) Gi weavb mv‡c‡¶, †Rjv wbe©vPb Kg©KZ©v, †cŠimfvi AšÍfy©³ GjvKvmg~‡ni ‡fvUvi ZvwjKv cªYqb Kwi‡eb|
(2) Dc-wewa (1) G DwjwLZ †fvUvi ZvwjKv GBi“‡c cÖYqb Kwi‡Z nB‡e †hb cÖwZwU Iqv‡W©i cyi“l I gwnjv †fvUviM‡Yi Rb¨ c„_K c„_K †fvUvi ZvwjKv _v‡K|ÕÕ
15. The District Election Officer shall on behalf of the Commission prepare (cÖYqb) electoral roll for the areas included in the Pourashava and for every ward there shall be separate voter list for male and female.
16. Rule 9 further states-
“ 9| ‡fvUvi ZvwjKv mieivn|- (1) Kwgkb cÖ‡Z¨K wbe©vPbx GjvKvi wiUvwb©s Awdmvi‡K wbe©vPbx Zdwmj †Nvlbvi Ae¨ewnZ c‡iB D³ GjvKvi †fvUvi ZvwjKv mieivn Kwi‡e|
(2) wiUvwb©s Awdmvi Dc-wewa (1) Gi Aaxb cÖvß †fvUvi ZvwjKv mswkó †fvU‡K‡›`ªi cÖ‡Z¨K wcÖRvBwWs Awdmvi‡K mieivn Kwi‡e|”
17. With the declaration of election schedule the Commission shall sent electoral roll to the concerned Returning Officer appointed under the rules for one or two pourashavas of the respective “wbe©vPbx GjvKv”, the constituency. The emphatic contention of the petitioners in this regard is that pursuant to section 17(1) of the Act no.58 of 2009 and rule 4(2) of the ÔÔ¯’vbxq miKvi (†cŠimfv) wbe©vPb wewagvjvÕ 2010ÕÕ for pourashava election the Commission has to prepare separate electoral roll under the said Rules. It has already been noted above that the word “‡fvUvi ZvwjKv ”referred in those provision relate back to rule 2(25) which precisely prescribes that the voter list prepared under Act no. 6 of 2009 is “GB AvB‡bi Aax‡b P~ovšÍ †fvUvi ZvwjKv”. Moreover, on proper examination of the entire provisions of the Act no. 58 of 2009 and the Rules, 2010 we failed to find any provision whatsoever dealing with the procedure of preparation of voter list of the respective pourashava. The procedure for preparation, amendment and revision of electoral roll have been categorically dealt with under the Act no. 6 of 2009 and “†fvUvi ZvwjKv wewagvjv, 2010.” However, the learned Advocate for the petitioners in this regard has drawn our attention to section 2(kha) of the Act no.6 of 2009 and submits that since the legislature has used the words “msm‡`i wbe©vP‡bi Rb¨ ” as such Act no. 6 of 2009 is only applicable for parliament election. We do not any find substance thereto inasmuch as section 2(Ga) has included the word “ msm` ev †Kvb ¯nvbxq miKvi ms¯nv ” while defining the word “ wbe©vwPZ ms¯nv ” (elected body). That be the case, for holding pourashava election the final voter list prepared under the “‡fvUvi ZvwjKv AvBb, 2009” shall be made applicable.
18. Section 7 of the Act no. 6 of 2009 provides the procedure for preparation and publication of the electoral roll which runs as follows-
“ 7| ‡fvUvi ZvwjKv cÖYqb I cÖKvk|Ñ(1) †Kvb †fvUvi GjvKv ev wbe©vPbx GjvKvi †iwR‡óªkb Awdmvi, Kwgk‡bi ZË¡veavb, wb‡`©kb Ges wbqš¿Yvax‡b, D³ †fvUvi GjvKv ev wbev©Pbx GjvKvi Rb¨ wba©vwiZ c×wZ‡Z GKwU Lmov †fvUvi ZvwjKv cÖYqb Kwi‡eb, hvnv‡Z Ggb cÖ‡Z¨K e¨w³i bvg AšÍfy©³ _vwK‡e whwb, †hvM¨Zv AR©‡bi Zvwi‡LÑ
(K) evsjv‡`‡ki GKRb bvMwiK nb;
(L) AvVv‡iv erm‡ii Kg eq¯‹ b‡nb;
(M) ‡Kvb Dchy³ Av`vjZ KZ©„K AcÖK…wZ¯’ ewjqv †NvwlZ b‡nb; Ges
(N) D³ †fvUvi GjvKv ev, †¶ÎgZ, wbe©vPbx GjvKvi Awaevmx ev Awaevmx ewjqv MY¨ nb|
(2) Dc-aviv (1) Gi Aaxb cÖYxZ Lmov †fvUvi ZvwjKv, Zrm¤ú‡K© `vex Ges AvcwË AvnevbKvix GKwU †bvwUkmn, wba©vwiZ c×wZ‡Z cÖKvk Kiv nB‡e|
(3) ‡iwR‡óªkb Awdmvi, wba©vwiZ c×wZ‡Z, Lmov †fvUvi ZvwjKvq GBiƒc ms‡hvRb, cwieZ©b ev ms‡kvab Kwi‡eb hvnv †Kvb `vex ev AvcwËi Dci wm×v‡šÍi d‡j cÖ‡qvRbxq nB‡Z cv‡i ev †Kvb wjLb, gy`ªY ev Ab¨ †Kvb cÖKvi Î“wU ms‡kva‡bi Rb¨ Avek¨K nB‡Z cv‡i|
(4) Dc-aviv (3) Gi Aaxb ms‡hvRb, cwieZ©b ev ms‡kvab, hw` _v‡K, Kwievi ci †iwR‡óªkb Awdmvi, wba©vwiZ c×wZ‡Z, †Kvb †fvUvi GjvKv ev wbe©vPbx GjvKvi Rb¨ P~ovšÍ †fvUvi ZvwjKv cÖKvk Kwi‡eb Ges cÖKvwkZ P~ovšÍ †fvUvi ZvwjKvmg~n D³ †fvUvi GjvKv ev wbe©vPbx GjvKvi Rb¨ †fvUvi ZvwjKv ewjqv MY¨ nB‡e|
(5) Dc-aviv (4) Gi Aaxb cÖKvwkZ P~ovšÍ †fvUvi ZvwjKv Awej‡¤^ Kvh©Ki nB‡e|
(6) P~ovšÍ †fvUvi ZvwjKv wba©vwiZ c×wZ‡Z iw¶Z nB‡e Ges Rbmvavi‡Yi cwi`k©‡bi Rb¨ Db¥y³ _vwK‡e, Ges †Kvb e¨w³ wba©vwiZ wd cÖ`vb mv‡c‡¶ Dnvi Kwci Rb¨ Av‡e`b Kwi‡j wba©vwiZ c×wZ‡Z Zvnv‡K Dnv mieivn Kiv nB‡e|
(7) ‡fvUvi ZvwjKv wbav©wiZ c×wZ‡Z Kwgk‡bi I‡qe mvB‡U me©mvavi‡Yi Rb¨ msiw¶Z _vwK‡e Ges nvjbvMv`K…Z ZvwjKv Øviv Dnv cÖwZ¯’vwcZ nB‡e|
(8) ‡Kvb †fvUvi GjvKv ev wbe©vPbx GjvKvi †fvUvi ZvwjKvq ev Dnvi Lmovq †Kvb ¯úó Î“wU ev Awbqg `„wó‡MvPi nB‡j Kwgkb Abyiƒc ZvwjKv ev Lmov evwZjc~e©K D³ †fvUvi GjvKv ev wbe©vPbx GjvKvi Rb¨ b~Zb †fvUvi ZvwjKv cÖYqb Kwievi wb‡`©k w`‡Z cvwi‡e|
(9) Kwgkb wewfbœ wbe©vwPZ ms¯’vi wbe©vP‡bi Rb¨, cÖ‡qvRb g‡b Kwi‡j, †fvUvi ZvwjKv cybwe©b¨vm Kwi‡Z cvwi‡e|ÕÕ
19. The first and foremost important criterion to be the qualified electors is that the electoral roll shall contain the name of the person who on the qualifying date is a citizen ofBangladesh. However, the word “‡hvM¨Zv AR©‡bi ZvwiL” has further been defined in section 3(Ja) of the Act no. 6 of 2009, which states as follows-
“3(R) ÔÔ†hvM¨Zv AR©‡bi ZvwiLÕÕ A_© GB AvB‡bi Aaxb cÖwZwU †fvUvi ZvwjKv cÖYqb, msv‡kvab, cybtcixw¶Z ev nvjbvMv‡`i †¶‡Î †hB ermi Dnv GBiƒ‡c cªYxZ, ms‡kvwaZ, cybtcixw¶Z ev nvjbvMv`K…Z nq †mB erm‡ii Rvbyqvix gv‡mi c‡njv ZvwiL;”
20. Sub-sections (2)-(8) of section 7 narrates the preparation of electoral roll from the stage of draft publication upto publication of final electoral roll. However, under section 7(8) on the count of “¯úó µywU ev Awbqg” in or in the preparation of electoral roll of any electoral area or constituency the Commission may by order direct such electoral roll or draft to be cancelled and a fresh electoral roll for that electoral area or the constituency be prepared afresh.
21. Section 10 further provides for amendment and correction of electoral roll, which is quoted herein below-
“10| †fvUvi ZvwjKv ms‡kvab|Ñ wewfbœ wbev©wPZ ms¯’vi wbe©vP‡bi mgqm~Px †NvlYvi ZvwiL nB‡Z wbe©vPb Abyôv‡bi mgqKvj e¨wZ‡i‡K, Ab¨ †h †Kvb mgq, wba©vwiZ c×vwZ‡Z, cÖ‡qvRb Abymv‡i wb‡gœv³fv‡e ms‡hvRb I we‡qvRbc~e©K †fvUvi ZvwjKv ms‡kvab Kiv hvB‡e, h_vt-
(K) D³ ZvwjKvq Ggb †Kvb ‡hvM¨ e¨w³i bvg AšÍfy³ Kiv, hvnvi bvg AšÍfy©³ Kiv nq bvB, ev whwb Bnv cÖYq‡bi ci ev Bnvi me©‡kl cybtcix¶vi ci Abyiƒc D³ ZvwjKvq AšÍfy©³ nBevi †hvM¨ nBqv‡Qb; ev
(L) D³ ZvwjKvfy³ †h e¨w³ g„Z¨yeiY Kwiqv‡Qb ev whwb Abyiƒc ZvwjKvq AšÍfy©³ nBevi mgq A‡hvM¨ wQ‡jb ev A‡hvM¨ nBqv‡Qb Zvnvi bvg KZ©b Kiv; ev
(M) whwb evm¯’vb cwieZ©‡bi Kvi‡Y b~Zb †fvUi GjvKv ev, †¶ÎgZ, wbe©vPbxi GjKvi Awaevmx nBqv‡Qb, c~‡e©i †fvUvi GjvKvi ev †¶ÎgZ, wbe©vPbxi GjvKv ZvwjKv nB‡Z Zvnvi bvg KZ©bc~e©K b~Zb wbe©vPbx GjvKvq ev, †¶ÎgZ, †fvUvi GjvKvi ZvwjKvq AšÍfy©³ Kiv; ev
(N) Bnv‡Z †Kvb AšÍ©fyw³, ms‡kvab ev †Kvb Î“wU-weP¨ywZ `~i Kiv|ÕÕ
22. Vide section 10 the electoral roll may be amended and corrected in the prescribed manner at any other time, except from the date of declaration of election schedule till completion of election process, if and when necessary so as to include the name of any qualified person who does not appear on such roll or who has since its preparation or its last revision become qualified to be enlisted on such roll or to delete therefrom the name of person who is disqualified for enrollment on such roll. Section 11 further contends the provision of revision of electoral roll, which runs as follows-
“ 11| ‡fvUvi ZvwjKv nvjbvMv`KiY|Ñ(1) Kw¤úDUvi WvUv‡eR msiw¶Z we`¨gvb mKj †fvUvi ZvwjKv, cÖwZ ermi 2 Rvbyqvix nB‡Z 31 Rvbyqvix ch©šÍ mgqKv‡ji g‡a¨, wba©vwiZ c×wZ‡Z, wbgœiƒ‡c nvjbvMv` Kiv nB‡e, h_vÑ
(K) c~‡e©i erm‡ii 2 Rvbyqvix nB‡Z whwb 18 ermi eqm c~Y© nBevi Kvi‡Y †fvUvi nBevi †hvM¨ nBqv‡Qb A_ev †hvM¨ wQ‡jb, wKš‘ aviv 10 Gi Aaxb ZvwjKvfy³ nb bvB, Zvnv‡K †fvUvi ZvwjKvfy³ Kiv;
(L) D³ mgqKv‡j whwb g„Zy¨eiY Kwiqv‡Qb wKsev ZvwjKvfy³ nBevi A‡hvM¨ wQ‡jb wKsev nBqv‡Qb, Zvnvi bvg KZ©b Kiv ; Ges
(M) whwb we`¨gvb wbe©vPbx GjvKv ev †¶ÎgZ, †fvUvi GjvKv nB‡Z Ab¨ wbe©vPbx GjvKvq ev †¶ÎgZ, †fvUvi GjvKvq Avevm¯’j cwieZ©b Kwiqv‡Qb, Zvnvi bvg c~‡e©i GjvKvi †fvUvi ZvwjKv nB‡Z KZ©b Kwiqv ¯’vbvšÍwiZ GjvKvi †fvUvi ZvwjKvi AšÍ©fy³ Kivt
Z‡e kZ© _v‡K †h, hw` †fvUvi ZvwjKv c~‡e©vwjwLZfv‡e nvjbvMv` bv Kiv nq, Zvnv nB‡j Dnvi ˆeaZv ev avivevwnKZv ¶zYœ nB‡e bv|
(2) Dc-aviv (1) G hvnv wKQyB _vKzK bv †Kb, Kwgkb †h ‡Kvb mgq, KviY wjwce× Kwiqv, †h †Kvb ‡fvUvi GjvKv ev wbe©vPbx GjvKvi Rb¨, Zrwe‡ePbvq Dchy³ c×wZ‡Z, †fvUvi ZvwjKvi we‡kl cybtcix¶vi wb‡`©k w`‡Z cvwi‡et
Z‡e kZ© _v‡K †h, GB AvB‡bi Ab¨vb¨ weavb mv‡c‡¶, Abyiƒc †Kvb wb‡`©k Rvixi mgq H †fvUvi GjvKv ev wbe©vPbx GjvKvi Rb¨ ejer †fvUvi ZvwjKv D³iƒ‡c wb‡`©wkZ we‡kl cybtcix¶v m¤úbœ bv nIqv ch©šÍ ejer _vwK‡e|ÕÕ
23. The said revision (nvjbvMv`Kib) shall take place from 2nd of January to 31st January every year in the prescribed manner so as to include the name of a person who has attained the age of 18 years on 2nd of January or even to delete the disqualified person. However, the proviso to section 11(1) says if the electoral roll is not revised as aforesaid the validity or continued operation of the electoral roll shall not thereby be affected. Sub-section 2 gives overriding effect to sub-section (1) by saying notwithstanding anything contained in sub-section (1) the Commission may at any time for reasons to be recorded in writing direct a special revision/re-examination/re-scrutinisation (cybtcix¶v) of the electoral roll for any electoral area or constituency in such effective manner as it may deem fit and proper provided that subject to the other provisions of the Ain, the electoral roll for the electoral area or constituency, as in force at the time of the issue of such direction, shall continue to be in force until the completion of the special revision ( cybtcix¶v) so directed.
24. Further, section 13 of Act provides as under-
“13| ‡fvUvi ZvwjKv nB‡Z bvg KZ©b|Ñ †fvUvi ZvwjKvq bvg AšÍfy©³ Av‡Q Ggb †Kvb e¨w³ evsjv‡`‡ki bvMwiK bv _vwK‡j ev †Kvb Dchy³ Av`vjZ KZ©„K AcÖK…wZ¯’ ewjqv †NvwlZ nB‡j Zvnvi bvg †fvUvi ZvwjKv nB‡Z KwZ©Z nBqv hvB‡e| ”
25. While agitating the issues so have been raised in the present Rules the petitioners have heavily relied upon the memo dated 22.06.2010 issued by the Deputy Commissioner, Cox’s Bazar addressing the Secretary of Election Commission. The contents of the said memo (Annexure-B) is quoted herein below-
“ MYcÖRZš¿x evsjv‡`k miKvi
‡Rjv cÖkvm‡Ki Kvh©vjq
bs-†RwbA/K·/10(1)Qtmt‡fvtZvtnvt-2009/226 ZvwiLt- 22/06/2010
‡cÖiK t ‡Rjv cÖkvmK
cÖvcK t mwPe
wbe©vPb Kwgkb mwPevjq
welqt 2007 mv‡ji †fvUvi ZvwjKvi ms‡kvabKiY cÖms‡M|
Dchy©³ wel‡q m`q `„wó AvKl©Y c~e©K Rvbv‡bv hv‡”Q †h, 2007 mv‡j ZË¡evavqK miKv‡ii Aax‡b cÖYqbK…Z I cÖKvwkZ †fvUvi ZvwjKvq 8% n‡Z 10% gvqvbgvi bvMwiK †fvUvi AšÍfy©³ n‡q‡Qb g‡g© ¯’vbxq Rbmvavi‡Yi KvQ †_‡K Awf‡hvM cvIqv hv‡”Q| welqwU ¯úk©KvZi weavq AÎ †Rjvaxb mKj Dc‡Rjvi 2007 mv‡j cÖYxZ I cÖKvwkZ m¤ú~Y© †fvUvi ZvwjKv cybt hvPvB‡qi gva¨‡g ms‡kvab Ki‡Yi cÖ‡qvRb i‡q‡Q g‡g© cÖZxqgvb nq| D‡jL¨ †h, 2009 mv‡j †fvUvi ZvwjKv nvjbvMv` cÖYqbKv‡j K·evRvi †Rjvi 06wU Dc‡Rjvi †¶‡Î †Rjv cÖkvm‡bi Aby‡iv‡ai †cÖw¶‡Z bZzb dig cÖYqb K‡i †fvUvi ZvwjKvq mwVK †fvUvi ZvwjKv cÖYqb Kiv nq | G‡Z B‡Zvc~‡e© c~iYK…Z 62.509 wU di‡gi g‡a¨ 45,859 wU dig we‡`kx bvMwiK weavq evwZj n‡q hvq|
GgZve¯’vq. AÎ †Rjvaxb 08 wU Dc‡Rjvi 2007 mv‡j cÖYxZ I cÖKvwkZ m¤ú~b© †fvUvi ZvwjKv mg~n K·evRvi †Rjvi Rb¨ cÖYxZ 2009 mv‡ji bZzb di‡g cybt hvPvB‡qi gva¨‡g ms‡kvab c~e©K †fvUvi ZvwjKv cybt hvPvB I ms‡kva‡bi wel‡q m`q cÖ‡qvRbxq e¨e¯’v MÖnY Ki‡Z we‡klfv‡e Aby‡iva Kiv nj|
(†gvt wMqvm DwÏb Avn‡g`)
26. On the same allegation and with a prayer for revision thereof the Deputy Commissioner, Cox’s Bazar forwarded letter to the Secretary, Ministry of Foreign Affairs in order to request the Election Commission to take effective measures in that regard (Annexure-C).
27. In this regard Mr. Tawhidul Islam, the learned Advocate appearing for the respondent no.2 by filing affidavits-in-opposition in both the writ petitions submits that the Election Commission being the product of the Constitution has an independent entity, not subservient to any government machineries so as to be bound by the respondent no.6, the Deputy Commissioner, Cox’s Bazar. Drawing attention to Annexure-2 he further goes to submit that admittedly a huge number of Rohingas from Myanmar are now residing in Bangladesh particularly in Cox’s Bazar district and the area adjacent thereto (officially 23,542, un-officially more than 4 lacs) upon procuring national I.D. and even have been registered as voters. Accordingly, the Armed Forces Division, Directorate of Operation and Planning, Prime Ministers Secretariat addressing the respondent no.2 on 2.8.09 contended, inter-alia,
‡ivwn½v kiYv_x© KZ©„K evsjv‡`‡ki RvZxqZv mb`cÎ I RvZxq cwiPqcÎ msMÖn eivZt
K| mk¯¿ evwnbx wefvM cÎ bs 2943/Acm/AvB ZvwiL 15 RyjvB 2009|
1| evsjv‡`k- gvqvbgvi mxgvšÍeZx© GjvKvq emevmiZ KwZcq Amvay evsjv‡`kx (¯’vbxq `vjvj I A_©‡jvfx e¨w³eM©) BDwc †g¤^vi I †Pqvig¨vb‡`i mnvqZvq AbycÖ‡ekKvix gvqvbgv‡ii †ivwn½v bvMwiK‡`i wbKU evsjv‡`kx wn‡m‡e RvZxqZv mb`cÎ Pov g~‡j¨ weµq Ki‡Q Ges D³ RvZxqZv mb`c‡Îi gva¨‡g †ivwn½viv Abvqv‡m evsjv‡`kx wn‡m‡e RvZxq cwiPqcÎ ˆZix K‡i K·evRvi I ev›`ievb †Rjvmn †`‡ki wewfbœ AÂ‡j Qwo‡q co‡Q| G we‡l‡q eivZ K Gi gva¨‡g Avcbv‡`i‡K AeMZ Kiv nq| eZ©gv‡b evsjv‡`‡k ZvwjKvf~³ 23,542 Rb †ivwn½v kiYv_x© _vK‡jI ZvwjKvi evB‡i Gi msL¨v cÖvq 4 j‡¶i AwaK| GB wecyj ewnivMZ Rb‡Mvwô cÖavbZ K·evRvi, ev›`ievb I Av‡k cv‡ki `~M©g GjvKvq Qwo‡q c‡o‡Q| G Rb‡Mvwôi A‡b‡K B‡Zvg‡a¨ `vjvj P‡µi gva¨‡g evsjv‡`kx cvm‡cvU© msMÖn K‡i ga¨cÖvP¨mn Ab¨vb¨ †`‡k cvwo Rwg‡q‡Q| eZ©gv‡b evsjv‡`k miKvi KZ©„K cwiPvwjZ †fvUvi wbeÜb I RvZxq cwiPqcÎ cÖ`vb cÖK‡íi my‡hvM wb‡q A‡bK gvqvbgvi bvMwiK evsjv‡`‡ki ¯’vqx emevmKvix bvMwiK wn‡m‡e cwiPqcÎ MÖnY K‡i‡Q e‡j Rvbv hvq| G‡`i g‡a¨ A‡b‡KB wewfbœ ai‡bi A‰ea †ckv I A‰bwZK Kg©Kv‡Û wjß n‡”Q| welqwU AZ¨šÍ ms‡e`bkxj I ¸i“Z¡c~Y© Ges wecyj Rb‡Mvwôi A‰ea Awfevmb †`‡ki A_©‰bwZK, mvgvwRK I mvwe©Kfv‡e RvZxq wbivcËvi cÖwZ ûgwK ¯^iƒc|
2| Dc‡iv³ e³‡e¨i Av‡jv‡K AÎ wefvM wb‡b¥v³ gZvgZ †cvlY K‡it
K| K·evRvi, ev›`ievb †Rjv I ZrmsjMœ GjvKv Ges iv½vgvwU †Rjvi KvßvB, wejvBQwo I Gi Av‡kcv‡ki GjvKvq †fvUvi wbeÜb I RvZxq cwiPq cÎ cÖ`vb AZ¨šÍ mZK©Zvi mv‡_ m¤úbœ Kiv|
L| wbeÜb cÖwµqvq RwoZ e¨w³e‡M©i mv‡_ RvZxq †Mv‡q›`v ms¯’v ¸‡jvi cÖwZwbwa ms‡hvRb Kiv Ges hvPvB evQvB cÖwµqv‡K AviI mymsnZ Kiv|
M| wbeÜb `‡ji mv‡_ †mbv I AvBb k„sLjv i¶vKvix evwnbxi m`m¨‡`i AšÍf~©³ Kiv Ges cÖwZwU wbeÜ‡bi mgq evwo wM‡q mswkó Rb‡Mvwôi cwiPq Ges bvMwiKZ¡ m¤ú‡K© wbwðZ nIq| mgq mv‡c‡¶ n‡jI GB c×wZ‡Z †Kvb Qvo bv †`qv|
N| wbeÜb msµvšÍ welq wewfbœ ms¯’v/G‡RwÝi cÖwZwbwa‡`i mgš^‡q GKwU KwgwU MVb Kiv †h‡Z cv‡i hvi mv‡_ wbe©vPb Kwgk‡bi cÖwZwbwa, mk¯¿ evwnbxi cÖwZwbwa, wewWAvi I AvBb k„sLjv i¶vKvix evwnbxi cÖwZwbwa, ¯’vbxq cÖkvm‡bi cÖwZwbwa I ¯’vbxq Rb cÖwZwbwa AšÍf~©³ n‡Z cv‡i|
O| †h mKj wbeÜb G ch©šÍ mgvß n‡q‡Q Zv c~bivq Z`šÍ mv‡c‡¶ cwiPq m¤ú‡K© wbwðZ nIqv Ges A‰ea cwiPq`vbKvix‡`i wbeÜb evwZj c~e©K AvBbvbyM e¨e¯’v MÖnY Kiv|
3| welqwU AZ¨šÍ ¸i“Z¡c~Y© I ms‡e`bkxj weavq Avcbv‡`i Avï Kvh©µ‡gi wbwg‡Ë †cÖiY Kiv n‡jv|
KvRx Avwe`ym mvgv`
c‡¶ wcÖwÝcvj ÷vd Awdmvi ”
28. Pursuant thereto the Election Commission decided in its meeting (Annexure-3) as under-
ÔÔwm×všÍ t we¯ÍwiZ Av‡jvPbvi ci Kwgkb wbgœiƒc wm×všÍ MÖnY K‡ibt
(K) Qwemn †fvUvi ZvwjKv nvjbvMv` Kvh©µg Dcj‡¶ Dc‡Rjv chv©‡q B‡Zvg‡a¨ †h mgš^q KwgwU MVb Kiv n‡q‡Q †m KwgwUi m`m¨eM©mn mk¯¿ evwnbxi cÖwZwbwa, wewWAvi I AvBbk„•Ljv i¶vKvix evwnbxi cªwZwbwai mgš^‡q K·evRvi, ev›`ievbmn mswkó †Rjvi Dc‡Rjv¸‡jv‡Z GKwU KwgwU MVb Ki‡Z n‡e| KwgwU mswkó GjvKvq †fvUvi nIqvi welqwU hvPvB K‡i P~ovšÍ wm×všÍ w`‡e| KwgwUi mycvwik Abyhvqx DwjwLZ GjvKvi †fvUvi‡`i †fvUvi ZvwjKvfy³ Kiv n‡e|
(L) K·evRvi, ev›`ievb †Rjvmn mswkó GjvKvq †fvUvi‡`i mwVK ZvwjKv msMÖn Kivi Rb¨ GKwU bZzb dig ˆZwii Rb¨ wcBAviwc cÖK‡íi Dc-cÖKí cwiPvjK Rbve Avwbm gvngy`, wbe©vPb Kwgkb mwPevj‡qi Dc-mwPe Rbve wgwni mviIqvi †gv‡k©` Ges wmwbqi mnKvix mwPe Rbve Ave`yj ev‡Zb-Gi mgš^‡q GKwU KwgwU MVb Ki‡Z n‡e| D³ KwgwU †fvUvi ZvwjKvq AšÍf~©w³i Rb¨ Z_¨ c~i‡Yi GKwU bZzb dig ˆZwi K‡i Kwgkb mfvq Dc¯’vcb Ki‡e| Kwgk‡bi Aby‡gv`‡bi ci D³ Abyhvqx mswkó GjvKvq †fvUvi‡`i Z_¨ msMÖn Ki‡Z n‡e|
(M) †h mg¯Í GjvKvq cÖ‡¶c‡bi †P‡q †ekx †fvUvi cwijw¶Z n‡”Q, †m mg¯Í GjvKvq bZzb dig Abyhvqx wbeÜ‡bi Rb¨ cÖ`Ë Z_¨ cybtcix¶v Ki‡Z n‡e|
(N) mk¯¿ evwnbxi c‡Îi Av‡jv‡K Kwgkb KZ©„K †h mg¯Í Kvh©µg MªnY Kiv n‡q‡Q Zvi eY©bv w`‡q c‡Îi Reve w`‡Z n‡e|”
29. Accordingly, the Deputy Director (Election) vide memo dated 01.09.2009 issued a circular constituting a high powered “Ec‡Rjv we‡kl KwgwU” for ÔÔwbe©vPb Kwgkb Z_¨ ch©v‡jvPbv Kvh©µg cwiPvjbvi Rb¨” stating, inter alia,-
“ Dc‡Rjv we‡kl KwgwU wb‡gœv³ c×wZ‡Z Z_¨ cybt hvPvB Kvh©µg m¤úbœ Ki‡ebt
(K) ‡fvUvi ZvwjKv AvBb, 2009 Abyhvqx †fvUvi n‡Z B”QyK Dchy³ e¨w³‡K evsjv‡`‡ki †Kv_vI ÔÔmPivPi wbevmxÕÕ n‡e n‡e| GB cwic‡Î D‡jwLZ Dc‡Rjvmg~‡n hw` †KD mPivPi wbev‡mi `vex K‡i, Z‡e †mB `vexi h_v_©Zv cy•Lvbycy•Lfv‡e AbymÜvb Ki‡Z n‡e| ïay GKwU wbev‡mi wVKvbvB GRb¨ h‡_ó n‡e bv| wbev‡mi cÖgvY¯^iƒc Zv‡K GRb¨ cÖYxZ AwZwi³ Z_¨ msMÖn dig Abyhvqx PvwnZ me Z_¨ cÖ`vb Ki‡Z n‡e|
(L) hw` ewY©Z Dc‡Rjvmg~‡n GB mg¯Í e¨w³ wbR¯^ m¤úwËi m~‡Î ZvwjKvfyw³i `vex K‡i, Z‡e Zv‡`i m¤úwËi gvwjKvbv I GZ`msµvšÍ Ab¨vb¨ Z_¨ mswkó `wjjvw`mn Z_¨ msMÖnKvix‡K cÖ`vb Ki‡Z n‡e|
(M) hviv evsjv‡`kx †Kvb bvMwi‡Ki mv‡_ ˆeevwnKm~‡Î †fvUvi ZvwjKvfyw³ `vex Ki‡eb- Zv‡`i ¯^ivóª gš¿Yvjq KZ©„K RvixK…Z bvMwiK mb`cÎmn `wjjvw` Z_¨ msMÖnKvix‡K cÖ`vb Ki‡Z n‡e|
(N) Ab¨ †Kvb m~‡Î †KD †fvUvi nIqvi Dchy³ `vex Ki‡j Zv‡K GZ`m¤úwK©Z cÖgvYvw` Z_¨ msMÖnKvix‡K cÖ`vb Ki‡Z n‡e|
(O) Z_¨ msMÖnKvixMY cÖwZwU evox evox wM‡q dig-2 Gi mv‡_ Qwemn †fvUvi ZvwjKv nvjbvMv` Kvh©µ‡gi AvIZvq AwZwi³ Z_¨ dig (Kwc mshy³) Gi gva¨‡g Z_¨ msMÖn K‡i cÖ‡qvRbxq `vwjwjK KvMRcÎmn cÖwZwU †Km Dc‡Rjv wbev©Pb Kg©KZ©vi wbKU Rgv w`‡eb| cieZ©©x‡Z Dc‡Rjv wbe©vPb Awdmvi DwjwLZ KvMRcÎvw` Dc‡Rjv we‡kl KwgwUi wbKU Dc¯’vcb Ki‡eb| ÕÕ
|µwgK bs||Dc‡Rjvi bvg||cyiYK…Z 2bs di‡gi msL¨v||M„nxZ di‡gi msL¨v||evwZjK…Z di‡gi msL¨vt-||gšÍe¨|
|‡fvUvi Abycw¯’Z||hvPvB c~e©K evwZj||‡gvU evwZj|
30. During the course of scrutinization adopting special method out of 62509, who filled in the said special form, 45866 forms were cancelled. The relevant ÔÔRL-(1)ÕÕ covering district Cox’s Bazar is quoted hereinbelow-
31. Accordingly, the learned Advocate submits that taking the issue of inclusion of Rohingas as voters effective measures had been duly undertaken by the Election Commission for revision of electoral roll’ 2009 with additional special information form and that with the said revised electoral roll Pourashava election of Cox’s Bazar district has been held on 27.01.2011 in accordance with law.
32. At this juncture the emphatic contention of the petitioners is that as per direction of the Election Commission the Upazilla Special Committee re-scrutinized the special information form filled up by the voters as per “®i¡V¡l a¡¢mL¡ BCe, 2009 ” for the year 2009-2010, adopting the procedure as stated in clause 4 of the circular dated 31.09.2009. But the said special process, “cybtcix¶v” was not made applicable for those enlisted in the electoral roll of 2007-2008 and with the said defective electoral roll pourashava election of Cox’s Bazar district was held on 27.01.2011.
33. The said assertion of the petitioner has found substance in view of clause 6 of the circular dated 01.09.2009 which states as under-
“ 6| hviv 2008 mv‡ji RvZxq msm` wbe©vP‡b †fvU †`Iqvi Rb¨ 2007-2008 mgqKv‡j †fvUvi ZvwjKvfy³ n‡q‡Qb wKsev hv‡`i AbyK~‡j evsjv‡`‡ki cvm‡cvU© Rvix Kiv n‡q‡Q Zv‡`i Rb¨ 4bs Ab‡”Q` ewb©Z weavb cÖ‡hvR¨ n‡e bv| ”
34. Moreover, from clause 9 of the said circular it is evident that said special scrutinizing method adopted for the year 2009-2010 voter list did not cover Moheshkhali pourashava, district Cox’s Bazar. In view of the stated position of fact pourashava election of Cox’s Bazar particularly Cox’s Bazar Sadar, Teknaf, Moheshkhali and Chakaria was not held on 27.1.2011 with update (nvjbvMv`) revised electoral roll. However, proviso to section 11(1) of the Act no. 6 of 2009 says if the electoral roll is not revised as per clause (a),(b) and (c) the validity or continued operation of the electoral roll shall not thereby be affected. Said provision of law is not under challenge in the present Rules. As such even though electoral roll of 2007-2008 has not been updated the validity and the continued operation of the earlier electoral roll shall remain in force.
35. As to the allegation of not publishing final voter list, from Annexure-4 particularly memo dated 16.02.2010 as well as 18.02.2010 respectively issued by the District Election Officer, Cox’s Bazar it appears that the process adopted was for “ Ec‡Rjv we‡kl KwgwU KZ©„K Z_¨ dig cybt hvPvB msµvš— Z_¨ I Qwemn †fvUvi ZvwjKv nvjbvMv` Kvh©µg, 2009.” Upon scrutinizing the information and excluding the false voters the Deputy Secretary (Election) fixed 21.03.2010 for hearing objection thereto in view of section 7(2) of the Act no. 6 of 2009. Ultimately upon hearing the objection on 21.03.2010 final voter list have been published on 09.09.2010 (Annexure-8). As such, allegation of the petitioners of holding pourashava election of Cox’s Bazar district without publishing final electoral roll under section 7(4) of the Act no. 6 of 2009 falls through.
36. Be that as it may the pourashava election of Cox’s Bazar Sadar, Teknaf, Moheshkhali and Chakaria, district Cox’s Bazar held on 27.02.2011 is declared as valid and lawful in the eye law.
37. It is fact that by notification dated 02.12.2010 the Election Commission decided to hold the election for pourashava and as such declared schedule with time frame for the steps. The operation of the said notification, stayed by the High Court Division in writ petition no. 9748 of 2010 at the time of issuance of the Rule Nisi, was ultimately stayed by the Appellate Division and considering the position as prevailing in the present writ petitions the Election Commission published another notification on 2012.2010 (Annexure-G) which is quoted as under-
“wbe©Pb Kwgkb mwPevjq
‡k‡i evsjv bMi, XvKv
06 †cŠl 1417
bs-wbKm/†cŠi-1/K·-K·/2004/249|- wbe©vPb Kwgkb mwPevjq nB‡Z 02 wW‡m¤^i 2010 Zvwi‡L wbKm/†cŠi-1/1(24)/†cŠit mvavt wbev©t cwit/2010/ 178 b¤^i cÖÁvc‡bi gva¨‡g K·evRvi †Rjvi K·evRvi, †UKbvd, PKwiqv Ges g‡nkLvjx †cŠimfv wbe©vP‡bi Rb¨ †NvwlZ mgqm~Px gvbbxq mycÖxg †Kv‡U©i nvB‡KvU© wefv‡Mi ixU wcwUkb bs 9748/2010 Gi 15 wW‡m¤^i 2010 Zvwi‡Li Av‡`‡k ¯’wMZ Kiv nq| D³ Av‡`‡ki †cÖw¶‡Z wbe©vPb Kwgkb KZ©„K 15 wW‡m¤^i 2010 Zvwi‡L D‡jwLZ 4wU †cŠimfvi wbe©vPb ¯’wMZ Kiv nq| cieZx©‡Z gvbbxq mycÖxg †Kv‡U©i Avcx‡jU wWwfk‡bi wmwfj wgmwmwjwbqvm wcwUkb di wjf Uz Avcxj bs-1080/2010 Gi 19wW‡m¤^i 2010 Zvwi‡Li Av‡`‡k gvbbxq nvB‡KvU© wefv‡Mi Av‡`k ¯’wMZ Kivi †cÖw¶‡Z wbe©vPb Kwgkb GZØviv K·evRvi †Rjvi K·evRvi, †UKbvd, PKwiqv Ges g‡nkLvjx †cŠimfvi †gqi, msiw¶Z Avm‡bi KvDwÝji Ges mvaviY Avm‡bi KvDwÝji wbe©vP‡bi D‡Ï‡k¨ wb‡gœewY©Z mgqm~Px †NvlYv Kwi‡Z‡Qt
29 wW‡m¤^i, 2010
(K) wiUvwb©s Awdmv‡ii wbKU g‡bvqbcÎ `vwL‡ji †kl ZvwiL t —————-(eyaevi)
15 †cŠl, 1417
(L) g‡bvqbcÎ evQvB‡qi ZvwiL t————-(kwbevi?iweivi)