Local Government (Union Parishads) Ordinance, 1953
“Absence”
Absence
means absence for a period not exceeding three months in a year as referred to
in Scction-15 of the Ordinance.
M.A. Matin Vs. Md.
Lokman Patwary 2BLT (AD)-142
“Any other cause”
“Any
other cause’ have to he read ejus-dem generis with the words “absence,
illness”.
M.A. Matin Vs. Md.
Lokman Patwary 2BLT (AD)-142
Post-Election dispute
It is
only the Election Tribunal which is competent to decide a post election dispute
and that the Election Commission has no authority to decide such a matter.
Md. Safid Islam Vs.
Golam Kibria & Ors 8BLT(AD)-65
Section 6(1)
Term of union
parishad
In the
instant case, the appellant No. 1 was elected chairman of the Putail Union
Parishad and the result was published in the Gazette on 22.2.1992 and he took
oath of office on 12.3.1992 The first meeting of the union parishad was held on
24.3.1992. Appellant No. 1 continued as chairman upto 3.8.1995 and thereafter
respondent No. 1 took charge of the said office following his success in the
election petition filed by him challenging the election of appellant No. 1—Held:
The term of the concerned union parishad expired on 23.3.1997 and as such there
was no illegality in declaring the election schedule for the said union
parishad by the impugned notification dated 20.10.1997.
Md. Abdus Sobhan
& Anr. Vs Md. Abdu Salter & Ors. 7BLT (AD)-3
Section-7 (2) (e)
The
appellant has been serving as the Headmaster of the Sammilani Girls High
School. The said school is a recognised nongovernment school and the appellant
was elected chairman of the union parishad in 1973, 1977, 1983 and 1992 and
that he is still functioning as the chairman thereof – A recognised
non-government secondary school does neither become a statutory body nor a
‘Local authority’ within the meaning of the General Clauses Act. That become
disqualified for being a chairman of union parishad under section 7 (2) (e) of
the ordinance of 1983 by reason of being a fulltime teacher of the; Sammilani
Girls High School.
Mofizu1 Haque Vs.
Mafizur Rahman & Ors. 4BLT (AD)-130
Section-7(2) (e)
The
letter of resignation was accepted by the appropriate authority at a later date
on 8.2.92 making it effective from 4.12.91 it cannot be said that on the date
petitioner filed his nomination paper on 7.12.91 and on 10.12.91 when his
nomination paper was accepted he was not in service of Rupali Bank Ltd. The
fact is that on those two dates the resignation letter of the petitioner had
not been accepted and therefor, although by letter dated 8.1.92 his resignation
had been made effective from 1.12.91 he did not stand resigned from service
until it was accepted on 8.2.92 the courts below had not committed any error in
holding that the petitioner was disqualified u/s 7(2)(e) of the Local
Government (Union Parishad) Ordinance, 1983 from participation in the election
for the post of chairman of Union Parishad.
Ahsanur Vs. Akkel
Mollah & Ors 3BLT(HCD)20
Section-7 (2) (e)
A
teacher or a private madrasah receiving a part of his salary as contribution
from the Government does not hold office of profit In the service of the
Republic or any Local Authority and as such does not earn any disqualification
within the meaning of Section 7 (2) (e) of the Ordinance.
Md, N. Chowdhury vs
S. Patwari & Ors. 2BLT (HCD)-7
Section4(2)(g) read with Local Government
(Union Parishads) Amendment Act, 1993
Section-7(2)
On
4.11.1997 was the date fixed for filing Nomination paper. 5.11.1997 was the
date for scrutiny of Nomination paper. Election was held on 17.12.1997.
Admittedly, petitioner did not repay bank loan on 4.11.1997 and he repaid loan
on 5.11.1997. Bank authority accepted the loan-Held: In view of the amended
provision amending or omitting the words “or Nomination” it becomes unnecessary
to embark upon an enquiry as to whether petitioner was defaulter on the day of
filing Nomination paper. The intention of Legislature in bringing about
amendment in Ordinance of 1983 by
amendment act of 1993 was to disqualify a person from holding any public office
when he stood as defaulter on the day of election and not on the day of
presenting Nomination paper. The disqualification incurred a petitioner on the
day of Nomination stood wiped out, annulled and obliterated on the day of
scrutiny-petitioner did not incur disqualification for the election of the
public office of Chairman of Union Parishad and his election stands valid.
Md. Shafiqul Islam
Vs. Md. Imdadul Haque & Ors. 9 BLT(HCD)-235
Sections-9 and 13 (b)
(a) The
words ‘Prescribed Period’ mean a period of thirty days from the publication of
results as far as the Deputy Commissioneris concerned. If he fails to determine
a date within this time limit no consequence ensures. It is only when the
elected person fails to make an oath of office of a date fixed within the time
limit and furthermore when the Deputy Commissioner does not extend the period
for lack of showing good cause that the Mischief of Section 13(b) is attracted
— It is for the Deputy Commissioner to adhere to the time limit and the elected
persons have no responsibility in this regard. If the Deputy Commissioner
himself fails to adhere to the time limit, Section 13(b) of the Ordinance is
not attracted.
Md. Abdul Mannan
Alias Manu Vs Md. Sajedul Haque & Ors. 2BLT (AD)-93
(b)
Respondent No. 1 was elected as the chairman of the Dapunia Union Parishad,
Pabna in 1988 and contested the same election for the same office on 22.1.92
but lost to the appellant. Respondent Nos 5-13 were elected as members thereof
in the same election. The name of those elected persons were published in the
official Gazette on 5.3.92. Respondent No. 1 come to know from a Memo, dated
11.4.92 issued by the then Upazilla Nirbahi Officer, Pabna Sadar that the oath
taking ceremony of the newly-elected chairman and the members, would be held on
15.4.92 and another Memo, dated 16.4.92 asked the respondent No. 1 to hand over
the charge to the newly-elected chair man In the writ petition. Respondent No.
1 challenging, both the Memos on the ground that he has not liable to hand over
charge as the offices of the chairman and members had fallen vacant owing to
their failure to take oath within the prescribed period No affidavit-in
opposition was filed The High Court Division accepted such unchallenged facts
and made the Rule Nisi absolute — It is found that the Gazette Notifications
were received by the office of the Deputy Commissioner, Pabna on 11.4.92 and on
15.4.92 was fixed for administration of oath to the appellant and respondent
Nos 5-13 — the appellant and respondent Nos 5-13 have not failed to make the
oath referred to in section 9 of the ordinance within the ‘prescribed period’ —
The appellant and respondent Nos 5-13 have in curried no liability under
Section 13(b). They continue to hold their respective offices and the High
Court Division erred in law in declaring their respective offices to be
vacant—the appeal is allowed.
Md. Abdul Manna,
Alias Manu Vs Md. Sajedul Haque & Ors. 2BLT (AD)-93
Section-20
It is
the consistent view of this Division that Section 20 of the Ordinance is not a
mandatory one rather it is a directory in nature. In the instant case merely
because of inclusion Mouza Haldermura in ward No.3 disturbing the territorial
continuity it cannot be said that the impugned order of delimitation is
violative of Section 20 of the Ordinance in that it is absolutely within the
province of the Delimitation Officer to include a village in any ward taking
into consideration all the 3 factors viz., territorial unity, administrative
convenience and distribution of population as far as practicable.
Abdul Wahab
Chowdhury Vs. Md. Abu Taher & Ors. 9 BLT (AD)-233
Section-24 read with The Union Parishad
(Election) Rules, 1983 Rule-70
In the
instance case there was contemporaneous allegations and report before the
Election Commission about disturbance in those centres and the subsequent
enquiry report established the allegations-we cannot but reiterate that if
there are contemporaneous report or allegations about disturbance, ragging 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 & Ors. 9BLT (AD)46
Section-29 and Code of Civil Procedure, 1908
[V of 1908] Order-41 Rule-14(3)
Dispensation of the
service of notice.
Admittedly
respondent Nos. 2-5 have not entered appearance before the Tribunal or the
Appellate Tribunal. They are non-contesting respondents and in such a situation
Order 41 Rule 14(3) of the Code of Civil Procedure had given ample power to the
High Court Division to dispense with the service of notice upon the
non-contesting respondents which has been done by the High Court Division. The
High Court Division though acted under Section 151 of the Code of Civil
Procedure they could have acted under Order 41(3) of the Code of Civil Procedure.
This amendment it appears has escaped the notice of the learned Advocate who
appeared on behalf of the respondent before the High Court Division and also of
the said Division. In view of the clear provision of the Rule and in view of
the fact that Section 29(1) of the Local Government (Union Parishad) Ordinance
1983 relates to issuance of notice in the election petition which has been done
in the present case we hold that no illegality and wrong has been committed by
the High Court Division.
Md. Shahe Alam Vs.
Golam Sarwar & Ors 8BLT (AD)-157
Section-65 (1)
Whether the order
dated 13-10-92 passed by the Assistant Secretary, Ministry of Local Government,
Rural Development and Co-operatives suspending the Chairman from the office
during his temporary absence was justified
(a)
Under the Ordinance, the Government exercise an overall control and supervision
over a Union Parishad. There alternative circumstances provide the occasion for
the government to exercise the power of suspension of chairman :- (1) where any
proceeding have been initiated for the removal of the chairman under Section
12; or (2) where any criminal proceedings under any law have been started
against such chairman; or (3) where on an enquiry by the government, he is
found to be guilty of any Misconduct within the meaning of Section 12(1). It is
further conditional upon a formation of opinion by the government that the
exercise of power by the person concerned as chairman is either likely to be
prejudicial to the interest of the Union Parishad or of public interest.
M. A. Matin Vs Md.
Lokman Patwary 2BLT (AD)-112
(b) The
gravity of the offence disclosed in the criminal proceedings may be of a
sweeping factor in the minds of the people of the locality and a public murmur
about as chairman’s involvement in a capital crime may also be a burning issue
among the members of the public but if
the issues of gravity and public murmur are not before government as materials
for formation of opinion then these are extraneous matters and cannot be taken
into consideration by the court itself when the suspension order is scrutinised
by the court.
M.A Matin vs Lokman
Patwary 2BLT (AD)-142
(c) It
has been argued that the impugned order of suspension was not proceeded by a
show cause notice to the writ petition. But because the writ petition was
absconding the plea of an absence of a show cause notice is not available.
M. A. Matin Vs Md.
Lokman Patwary 2BLT(AD)-142
Section-24 Read With The Union Parishad
(Election) Rules, 1983 Rule-9
In the
instant case the Election Commission on consideration of the relevant facts and
in exercise of the authority vested in it under Section 24 of the Ordinance and
Rule 9 framed thereunder directed the Returning Officer for cancellation of the
election schedule, declared earlier and to give a fresh election schedule for
holding the election fairly and honestly and in pursuance thereof the District
Election Officer in exercise of the authority vested in him under rule 9 of the
Rules lawfully issued the impugned Annexure “C’ to the writ petition, i.e. the
election schedule afresh.
Mr. Nurul Islam Vs.
Thana Education Officer & 7BLT (AD)-1 73
Rules 13 (4) Read with Ordinance XLIV of 1984,
Rule 2 (4)
(A.)
Maintainability of revisional application—The petitioner withdrew his security money
and the revision is the continuation of the case since the petitioner withdraw
the security money before the final disposal of the matter, the instant
revisional application is in competent as contended by the learned Advocate of
the opposite party No.1
Held:
Finality of the election tribunal proceeding comes to an end after the decision
of the appeal, furthermore nowhere in the rules there is anything to show that
after withdrawal of the security deposit preferring a revisional application
under section 115 of the Code of Civil Procedure against the appellate order,
which ended in finality, is a bar, I find no substance in the submissions of
the learned Advocate for the opposite party No.1
M. H. Kabir Vs. M.
M. Hossain 4BLT(HCD) 130
(B)
Election Tribunal case —- ground for recounting of votes — in the absence of
clear justification recounting should not be ordered. Furthermore there must be
preparation of grounds for recounting from the time immediately polling is over
and when no prayer for’ recounting was made initially to the Presiding Officer,
the prayer for recounting cannot be allowed.
M. H. Kabir Vs. M.
M. Hossain 4BLT(HCD)-130
Rule-20(3)
From the
scheme of holding election of the Union Parishad under the rules, it is clear
that before disposal of any appeal preferred by any candidate against the order
of rejection of his nomination paper there is no scope for the Returning
Officer to prepare and publish the list of validly nominated candidate, either
for the purpose of declaring a candidate elected uncontested or proceeding with
the contested election.
Mr. Nurul Islam Vs.
Thana Education Officer & Ors. 7BLT (AD)-173
Rule-38 (1)
Recounting of
ballots —
admittedly no written prayer was made before the Presiding Officer for
recounting of the ballot papers on the allegation of any malpractice — The
learned Judge, therefore rightly found that in the absence of any
justification, recounting of ballots should not have been ordered, in the
absence of any prayer for recounting immediately after the polling before the
Presiding Officer —Relied on 38 DLR (AD) 275.
Muzaffar Hossain Vs.
Md Humayun Kabir & Ors. 3BLT(AD)-229
Rules-40 (1) and (4) Read with Rule-42
Election
to the Union Parishad—Election petition filed before the Election Tribunal for
setting aside the election on the ground of wrong counting of votes, witnesses
were examined by both the contesting parties—Election Tribunal set aside the
election of the returned candidate and declared the opposite party No. 1 as the
duly elected chairman on recounting of votes. The appellant authority also
upheld the decision as the Election Tribunal.
Held :
The election materials called for were produced though the Education
Officer-in- charge who succeeded the Returning Officer of the disputed
election. He deposed to say that the 3 (Three) gunny bags containing the
concerned ballot papers and other election materials were without proper seal
on the tied up end of the gunny bags. The Election Tribunal also noticed the
same—The object of these Rules is to secure not only the secrecy of the ballot
but also to eliminate chance of post election tempering of the election
materials. The above facts could not, therefore, be lost sight of—it is thus a
case of the matter going to the very root—both the judgments are liable to be
set aside, [Relied on 46 DLR (AD) 96 (97) and 38 DLR (AD) 175 (281)].
Md. Moslakin Vs
Abdul Matlib & Ors. 3BLT (HCD) 236
Land Laws and Land Administration Manual, 1990
Rule – 290
Granting Lease— it is expected that the plaintiff petitioners
will be treated in terms of Rule 290 in the matter of Granting Lease.
Modan Gopal Dutta
& Ors. Vs A.D.C. (Rev.) & Anr. 4BLT (AD)-261
Lack of objectivity—rude Words
The
contempt proceedings arose because respondent No. 2 was not allowed to join as
secretary of BSC after the final disposal of his case before the Appellate
Division by the appellant and thereby disobeyed the courts decree— The prayers
made in the joining letter were beyond the terms of the decree obtained by the
respondent—We have not been able to persuade ourselves to agree with the manner
in which the matter has been dealt with, particularly the rude words used
against the appellant. A high officer of the Government at the far end of his
career with a long service record without any allegation of blemish prior to
the pre sent incident should have been dealt with more consideration and
objectivity. An honest person would prefer dignity more than anything else. In
the facts of the present case, it has appeared to us that these considerations
have suffered a great deal because of the lack of objectivity.
S. A. M. Iqbal Vs.
The State & Anr 6BLT (AD)198
Marine Insurance
Claims
for unprepared damage to a ship caused by a Peril insured against in a Marine
Hull Policy of Insurance.
Clause
18 of the Institute Time clauses (Hulls)—The insured value will not represent
vessels sound market value, because there are other considerations which weigh
with, both the insured and the insurer in putting an insured value on a
vessel—the burden of proving the sound market value of the vessel at the
termination of the policy will be on the plaintiff who claims on the policy.
The burden is not discharged by just proving the insured value.
Sadharan Bima Cor
Vs. Bengal Liner Ltd. & Anr. 5BLT (AD)-69
Maxim
“Allegans
contraria non est. andiendus” means he is not to be heard who alleges things
contradictory to each other.
Bangladesh Parjatan
Corporation & Ors. Vs. Md. Mafizur Rahman & Ors 2BLT (AD)-49.