Local
Government (Union Parishad) Ordinance, 1983
(LI OF 1983)
Section—6(2),
9 and 13(b)
The Oath of
Office (Union Parishads) Rules, 1983, Rule—2
If
the Deputy Commissioner cannot administer the oath of office as contemplated in
sections 6(2), 9 and 13(b) of the Local Government (Union Parishads) Ordinance,
1983 and Rule 2 of the Oath of Office (Union Parishads) Rules, 1983 no legal
consequence has been provided for. The failure of the Chairman and Members to
take oath can be inferred only when the Deputy Commissioner fixes a date of
oath within 30 days of Gazette notification and the Chairman or Members without
good cause shown, fail to take oath on the date fixed.
Syed Hedayet
Ali Vs. The Chief Election Commissioner and others, 16 BLD (AD) 121
Section—7
On
interpretation of Section 7 of the Ordinance read with Section 30(1) (b) of the
Intermediate and Secondary Education Ordinance, 1961 it is held that a
non-government school is a “local authority” and as such the teacher of a local
secondary school is disqualified for election to the Local Union Parishad as
Chairman.
Abdul Mazid
Vs. Abu Zaffor Mohammad Khalil, 14 BLD(HCD)489
Section—7
(d)
Union
Parishad Rules, 1983, Rule—2 (2)
When
disqualification incurred by the petitioner under Section 7 (d) of the Local
Government (Union Parishads) Ordinance, 1983 is removed it shall be deemed that
it was never incurred by him in view of the order of acquittal passed by the
High Court Division in his appeal from the judgment and order of conviction
under Sections 302/109 of the Penal Code.
Under
Rule 2 (2) of the Union Parishad Rules, 1983 (The Oath of Office), the Deputy
Commissioner is empowered to give oath on a subsequent date to the office of
the Chairman of the Union Parishad if the cause shown for extension of time is
just and proper.
Md. S.M.
Abdur Rob Vs. Bangladesh and others, 15 BLD (HCD) 190
Ref:
Serajul Huq Chowdhury Vs. Nur Ahmed Chowdhury, 19 D.L. R. 766—Cited.
Section—7(2)(g)
Petitioners
father Year Mi Munshi took loan from the Bank and died without repayment of the
same. There was no intimation by the Bank to the petitioner that he is a loanee
of the Bank in respect of loan taken by his father. Under such circumstances,
the petitioner cannot be fund to be a defaulter on the ground of the loan
earlier taken by his deceased father. Particularly when the said loan is stated
to have been adjusted, the Returning Officer acted illegally in rejecting the
petitioners nomination paper on the ground of being a defaulter under section
7(2)(g) of the ordinance.
Md. Abdul
Jalil Munshi Vs. Returning Officer and others, 18 BLD (HCD)12
Sections—7(2)
(g)
Result of
participation in election by a Disqualified Candidate
Once
it is found that a person stands disqualified under Section 7(2) (g) of the
Ordinance at any stage of the election process and he continues to incur such
disqualification, his participation in the election renders the entire election
result void as the non-participation in the election of such a disqualified
candidate might give scope to the general voters to cast their votes
differently in favour of other candidates. Under such circumstances, it is to
be held that the participation of a disqualified candidate in the election
materially affected the result of the election and tht. Election Tribunal
should direct for re-election.
Md.
Sharfuddin Vs Md. Mofizuddin Sarker and others, 16 BLD(HCD)177
Section—12
Union
Parishad Chairman aid Members (Resignation, Removal and Vacation of Office)
Rules, 1984, Rules—4
Having
regard to the provision of Section 4 of the Union Parishad Chairman and Members
(Resignation, Removal and Vacation Office) Rules 1984, the application may
submitted by the requisitionists either to the Upa-Zilla Nirbahi Officer or the
Deputy Commissioner for convening a special met ing as required by sub-section
(2) of Section 12 of the Ordinance. It is thus clear that bold the officers
have got jurisdiction and power i imitating the necessary proceedings. In th
instant case since a copy of the application for convening a special meeting
addressed to the Deputy Commissioner was also sent to th Nirbahi Officer, the
latter’s action authorizing the Assistant Commissioner for holding enquiry and
conducting the requisition meeting cannot be held to be illegal and without
lawful authority.
Alhaj Md.
Saidur Rahman Vs. Secretary, Ministry of Local Govt. and Rural Development and
others, 14 BLD (HCD) 275.
Ref:
Md. Monirul Hoque Vs. Govt. of Bangladesh and others, 41 DLR(AD) 108; B.D.
Habibullah Vs. Election Commission and others, 42DLR(AD) 218; Vine Vs. National
Dock Habour Board, 1956 Vol. 3 All England Law Reports 439; 1956 A.C. 488; Md.
Habibur Rahman and others Vs. Hasan Ali Mondal & others, 34
DLR(AD)158-Cited.
Sections—12(1)
and 65(1)
Removal and
Suspension of Chairman and Members
On
a reference to section 65(1) of the Ordinance the High Court Division found
that no proceeding was initiated for the removal of the respondent Chairman
under section 12 of the Ordinance nor any criminal case was started against him
nor any enquiry was made by the Government wherein he was found to be guilty of
any misconduct within the meaning of section 12(1) of the Ordinance. Law
requires that before suspending or removing a Chairman or a member the
Government must form an opinion on the basis of an enquiry that the delinquent
acted in a manner prejudicial to the interest of the Union Parishad or
undesirable from the point of view of public interest. Passing of the impugned
order of suspension without complying with the strict requirements of law
cannot be sustained.
Bangladesh
Vs. Md. Lutfur Rahman and others, 17 BLD (AD) 303
Section—13
Union
Parishad Rules, 1983, Rule—2 (2)
Vacation of
the Office of the Chairman or Member of the Union Parishad
Where
a person being in jail custody is elected Chairman of a Union Parishad but on
publication of the election result by the Election Commission he could not take
oath on the fixed date, his prayer for extension of time for taking oath made
to the Deputy Commissioner on the ground that he would be acquitted by the High
Court Division in the pending appeal and his order of conviction and sentence under
Sections 302/109 of the Penal Code would be set aside is a good cause shown
within the meaning of Section 13 (D) of the Ordinance and Rule 2 (2) of Union
Parishad Rules, 1983.
Md. S.M.
Abdur Rob Vs. Bangladesh and others, 15 BLD (HCD) 190.
Section—20(5)
Under
section 20 of the Ordinance only he delimitation officer is responsible for
making preliminary and final list of wards. The Thana Nirbahi Officer may give
his decision on specific matter to the delimitation officer, following which
the delimitation officer may make amendment, alteration or modification in the
preliminary list in the manner prescribed in sub-section (5) and only after
that he Thana Nirbahi Officer shall publish the final list in the official
Gazette.
Md. Serajul
Islam . Bangladesh and j at hers, 22 BLD (HCD) 625.
Section—24
Election
Commission has got inherent power under the provision of the Union Parishad
Election Ordinance, 1983, of superintendence, control and directions which
should be construed to mean the power to supplement the statutory rules with
the sole purpose of ensuring free and fair elections.
Md. Abul
Bashar Vs Kamrul Hasan and others, 19 BLD(AD)125
Ref:
45 DLR(AD)53—relied upon.
Section—24
Union
Parishads (Election) Pules, 1983
Rule—70
It
is the responsibility of the Election Commission to see that the election is
conducted justly, honestly and fairly and not to encourage demonstration of
muscle power in the election. It is now well-settled that the post-election
allegations are to be decided by the Election Tribunal and not by the Election
Commission. If there are contemporaneous report or allegations about
disturbance, rigging of ballot papers or election not being held justly,
honestly and fairly then after being satisfied about the correctness of the
report or allegations Election Commission would be justified to cancel the
result of the election and direct repoll. But it would not be justified to
cancel the result of election held peacefully on the basis of post-election
allegations.
Noor Hossain
Vs Md. Nazrul Islam and others, 20 BLD (AD) 174.
Section—26
When
the election process is still on the High Court Division ought not have
interfered with the matter on a disputed and controversial fact and resolved
them on mere affidavits.
Al-Haj
Jamshed Ali Vs A K M Abdullah and others, 20 BLD(AD) 189
Ref:
Nazir Ahmed Vs. Bangladesh Election Commission and ors. 41DLR (AD)87— relied.
Section—29(4)
Code of
Civil Procedure, 1908, Section—115(1)
It
is well settled that the District Judge acting as an Election Appellate Tribunal
under the Ordinance is not a persona designata and that his decision is
revisable, under section 115 of the Code of Civil Procedure.
Abdul
Mutalib Vs Md. Mostakim Au and others, 19 BLD(AD)157
Section—29(4)
Union
Parishads (Election) Rules, 1983, Rule—38
Although
no objection regarding counting of invalid votes was raised at the time of
counting of votes but omission to raise such objection is no bar to challenge
the result of an election in an election petition, as such objection gives rise
to an election dispute which is within the purview of the election tribunal to
direct recounting of votes.
Md. Mozammel
Hoque Vs Mohammad All and ors., 20 BLD(’HCD)359
Ref:
Khandker Rezaul Karim Vs. Md Babul Hossain and ors 4BLC(AD)209—relied
Ref:
38 DLR262; 38 DLR4p; 38 DLR435 28 DLR189; 27DLR388; 38DLR172; 28DLR 368;
3IDLR1I9; 27DLR373 48DLR(AD)59; 48DLR(HC) 569—Cited.
Sections—60,
65
There
are three alternative circumstances which provide occasions for the Government
to exercise the power of suspension of a Chairman : (i) where any proceeding
has been initiated for the removal of the Chairman under Section 12 or (2)
where any criminal proceeding under any law has been started against such
chairman or (3) where on an enquiry by the Government he is found guilty of any
misconduct within the meaning of Section 12 (1) . But the exercise of this
power is conditional upon a formation of opinion by the Government that the
functioning of the person concerned as chairman is prejudicial to the interest
of the Union Parishad or undesirable from the view of public interest.
Whenever
in any statute the exercise of power by any authority is made conditional upon
the formation of opinion of such authority, the formation of a rational opinion
is a sine qua non for the exercise of such power. The Government must form the
required opinion in terms of the language mentioned in Section 65(1) of the
Ordinance after being satisfied that the materials before it have a causal
connection with the kind of opinion that is required to be formed.
Bangla4esh
Vs. Md. Lokman Patwari and another, 14 BLD (AD) 155.
Section—65(1)
Suspension
of Chairman and members
Before
the Government can exercise power of suspension under section 65(1) of the
Ordinance the delinquent Chairman should be given an opportunity of being
heard. The formation of the opinion of the Government in this regard must be on
the basis of materials before it for being satisfied that the suspension order
is necessary in the interest of the Union Parishad or desirable from the view point
of public interest. In the instant case neither of the conditions contemplated
under section 65(1) of the Ordinance having been satisfied, the impugned order
of suspension must be held to be illegal and without any lawful authority.
Mofazzal
Hossain Sarker Vs Bangladesh and others, 17 BLD(HCD)76
Ref:
40 DLR (AD)170; 16 DLR(SC) 722; 46 DLR(AD) 163;—Cited.