LOCAL GOVERNMENT (UNION PARISHADS) ORDINANCE, 1983
Sections—2(8), 14 and 16
Function and office—Meanings of the
terms in the context of function of the offi of the Chairman of the Union
Parishad Ordinance—The term “functions’. manifests its limited connotation
which are attached only to the office of the chairman within the scope of the
Union Parishad Ordinance itself-The term ‘Office” means a place for transacting
business of an establishment in which any kind of administrative and clerical
work is done— Thus the “functions” of the office of the Chair- man can be said
to be only those functions of administrative in nature, which are attached to
the office of the chairman to run the administration of the Union Parishad.
Md.
Monirul Hoque Vs. Government of the People’s Republic of Bangladesh and others,
9BLD (HCD) 119
Section—5(4)
Chairman & Members of the Union
Parishad—Do they have separate identities or form a distinct
class—Implication of the deeming clause as has been used in the Law— On an
analysis of the Ordinance and the Rules it is evident that the terms “Chairman”
and “Member” have been defined separately to maintain their separate
identities, although provisions for their elections etc. are available in the
same Law—Their functions •though described sometimes separately and sometimes
as complementary to each other, facts remain that the Ordinance itself
maintained some distinction in between the offices of the Chairman and the
Members—Although a darning clause has been used in the section to treat the
Chairman as a Member but the law has maintained a distinction between the two—Had
the deeming clause been used for the purpose of equating them as one and the
same class then there would have been no requirement for making specific
provisions for their election, removal from office etc.
Abdul
Mannati Khan Vs. Govt of the People’s Republic of Bangladesh and others, I0BLD (HCD)161
Ref:AIR
1930(PC)54; AIR 1980 Bom.6l; AIR 1953 (SC) 244; 41 DLR(FB) 795; AIR 1930 Born.
& AIR l950(SC)—Cited.
Section—6( 1)
Union Parishad—Body Corporate— Every
Union Parishad shall be a body corporate, having perpetual succession and a
common seal, and shall, by its name, sue and be sued. Section 6(I) of the said
Ordinance does not speak of the term of a particular Chairman of a Union
Parishad. It clearly and unambiguously provides that the term of a Union
Parishad (which is a body corporate and artificial person) as a whole shall be
a period of three years commencing on the date of its first meeting after its
constitution.
The
term of a Union Parishad is not to be counted from the date on which an elected
Chairman (or member) attends the meeting of the Union Parishad for the first
time after his oath of office. The term of the Union Parishad for a period of
three years is to be counted from the first meeting of the Union Parishud
irrespective of the fact whether the first meeting of the Union Parishad is
held under the Chairmanship of the elected Chairman or an acting Chairman
elected in accordance with the provision of Section 6(1) of the said Ordinance.
Md.
S.M. Abdur Rob Vs. Bangladesh, Represented by the Secretary, Ministry of Local
Government, Rural Development and others, 12 BLD (HCD) 297
Section-7(2)(d)
Martial Law offence—Whether conviction
for such offence brings one under disqualification for election—Martial Law is
not a part of the constitutional scheme of this country—It is extra
constitutional, temporary measure meeting an interim need—It is good as long as
it lasts, but with its departure it no longer casts a shadow upon the ordinary
laws of the land—In that view of the matter, the Local Government Ordinance
does not refer to a conviction of a Military Court or to an offence
under—Martial Law Regulations and accordingly the respondent did not incur any
disquilification for election.
Monoranjan
Mukherjee Vs. Election Commission and others, 10BLD (H(’D)17
Section—7(2)(g)
Classification for legislation—Conditions
for classification to stand the test of ‘equality—Classification of persons for
the purpose of legislation is different from class legislation which is
forbidden—To stand the test of ‘equality’ a classification, besides being based
on intelligent differentia must have reasonable nexus with the object of the
legislature intends to achieve by making the classification—While making a
classification the legislature shall not act arbitrarily but make selection on
rational basis—if two categories of persons or things, though they may have
some resemblances, differ in material points, they may be separately treated
for the purpose of legislation—Dead uniformity in making classification is not
necessary and Rules of classification may allow flexibility—If a law is
applicable to all persons of a well defined class, then it cannot be criticized
on the ground that similar law has not been made for members o other
classes—Exclusion of members ol the Parliament from this beneficial law is
certainly unethical and morally undefinahie but it is 1ot unconstitutional.
Slieikh
Abdus 3abur Vs Returning Officer District Education Officei’-in-charge,
Gopalgonj and others, 9BLD (AD) 25
Ref:
216 JS. 400;, AIR 1975 SC 2279; AIR 1952 SC 75 AIR 1954 sc 424 AIR 1963 sc 268;
AIR 1954 SC 493: 9 DLR sc 21:A1R 1951 SC4I:AIR 1963 SC 222: AIR
951
Sc 318: AIR 1958 sc 538; AIR 1967 SC 691: AIR 1975 Sc 1234; AIR 1985 Sc 389;
AIR 1974 SC 300; AiR 1974 sc 1631; 2-18 US 152; 165 US 150; AIR 1952 SC 196-
Cited.
Section—7(2)(g)
Disqualification for election—Disqualification
of Chairman of Union Parishad— Whether guarantor and borrower stand on the same
footing—The Courts function is not to cause amendment of law but to Interpret
the same in its ordinary meaning as the statute itself is capable of—To insert
guarantor in the sec. is to add something which the legislator has not
intended.
Warish
Miah Vs. The People’s Republic of Bangladesh Represented by the Secretary,
Ministry of Local Government and Rural Development and others, 9BLD (HCD)212
Section-7(
2 )(g)
Payment
of loan—Disqualification for election as Chairman. of Union Parishad
for non-payment of loan—Whether the word loan in the section includes part or
installment of the total loan—Failure to pay any installment of the loan should
he taken as default in view of the nature of duties of the public office—
Considering the terms in the enactment the conclusion is that failure to pay
any instalment makes the borrower a defaulter and such person is disqualified
for holding office of the chairman.
Nur
Mohaminad Vs. Badruddoza Chowdhury and another, 10BLD (AD) 99
Ref:
4IDLR(AD) 48; 40 I)LR(AD) 10 and 41 DLR(AD) 30-Cited.
Section—7( 2 )(g)
Defaulter—In order to attract the
mischief of clause (g). it must be shown that the loan was to be repaid within
a time limit allowed by the bank, if the loan does not answer that description
or if there is no evidence of the kind of oan granted by the bank, the mischief
of clause (g) is not attracted.
A
Court of law, whether should always guard itself in interpreting and construing
disqualifying laws before dislodging a people’s representative who holds a
public office and before taking always his valuable legal right which has
accrued to him through a democratic process of election.
Abu
Taher Miah Vs. Farazuddin Sarker and others, 11BLD (HCD) 363
Section—7(2)(g)
Defaulter in repaying bank loan—The
expression for election or nom nation as used in Section 7(2) of the said
Ordinance of 1983 (Ordinance No.LX of 1983) makes (he legal position abundantly
clear that if the petitioner is a defaulter in repaying any loan to a specified
Bank on the date fixed for nomination as a Chairman or member, lie shall he
disqualified for nomination as Chairman or member to contest the said election.
Ansar
Ali Khan Vs. Chief Election Commissioner and others, 12BLD(HGD)164
Ref:
(1842)9M &W 378(398): 1940 AC 1014(l022); 7 Ex475 (560).—Cited.Sections—7(ii)(e)and 24
Valid &
Lawful election—Question arises as to whether on dismissal of suit
along with cancellation of respondents election will render appellant
uncontested elected—Further question of disqualification under another
provision of Ordinance—That question is not in this appeal—Uncontested election
is not sustainable in law as, it was declared in disregard to the Election
Commission’s order— This election-must go making the way clear for a fresh
election giving opportunity to all parties interested in it—A fresh poil is to
be held.
Md.
Rafiqul Alani Vs. Mustafa Kainal and other, 10BLD (AD) 151
Ref:
4IDLR(AD)68: 9 BLD (AD)78: 41 DLR(HCD) 77; 9BLD (HCD) 446; 41 DLR IHCD)197:
9BLD(HCD)326; 8BLD(HCD) 241; 8BCR(HCD)150: 4ODLR(HCD)459; 8 BLD(HCD)473; 40
DLR(HCD)512, 8BCR (HCD)61; (1984)ISCC277; 1SCR493; 1984 SCRI9II; AIR 1978 SC
851; AIR 1952 SC 64; 44CWN 709; 1919 AC 368; 6CBNS 336 —Cited.
Sections—24 and 26
Election dispute—Meaning of —This
proceeds consists of several stages starting from the notification inviting
nomination papers and ending with declaration of result after counting of
ballot papers and publication of result in official Gazette—Unless it is made,
no candidate can go to the Tribunal challenging the election—Election Commission
has got power -both under the Constitution and under U.P. – Ordinance to
organize, conduct, supervise and hold an election—and got power to intervene at
any stage of the election process before the notification in the Gazette is
published—Law does not contemplate intervention of any Court during any
intermediate stage of election process—If the civil Court entertains and issues
temporary Injunction—The election schedule cannot be maintained and election
will be postponed for years together — Civil Court Jurisdiction is impliedly
excluded—The Suit in question was – not maintainable—Election held on the
strength of temporary injunction made in the suit got no leg to stand upon.
Md.
Rafiqul Alarn Vs. Mu.ctafri Kainal and other, 10BLD(AD)lSI
Ref:
4IDLR(AD)68; 9BLD(A-D)78; 41 DLR (HCD) 77;
9BLD (HCD) 446: 4IDLR (HCD) 197; 9BLD
(HCD) 326; BLD(HCD) 241: 8BCR (HCD) 150; 40 DLR (HCD) 459; 8BLD(HCD)473; 40
DLR(HCD)5l2, 8 BCR (HCD)61: (l984)1SCC277; 1SCR493; 1984 SCRI9II.; AIR 1978 SC
851: AIR 1952 SC 64; 44CWN 709; 1919 AC 368; 6CBN S 336—Cite.
Section—26
Election—Meaning of —The whole process
starting from filing of the nomination to the declaration of the result comes
within the purview of the word election”—Local Government.
Monir
Ahmed Khan Vs. Md. Bazlu Mia and others, 8BLD(HGD)241
Ref:
28DLR(AD)5 1—Cited.
Section—26
Jurisdiction of civil Court—Ouster of
jurisdiction in. case of election dispute—The suit was filed challenging the
acceptance of nomination and a declaration -was sought that the acceptance was
illegal—The statements made in the plaint clearly suggest that the suit is
impliedly barred under the Ordinance and the Rules made there under.
– Monir
Ahmed Khan Vs. Md. -Badri Mia and others, 8BLD(HCD)241
Ref:
I7DLR (SC)515: 20 DLR(SC)335; 35DLR2 17—Cited.
Section—26
Election matter—Question of Civil-
Court’s jurisdiction—The plaint iii an election case pending before a civil
court has been rightly rejected in view of Local Government (Union Parishad)
Ordinance,- when electionpetition was not filed before the Election Tribunal
which was in existence at the relevant time.—Election having held earlier and
Tribunal also constituted under the Ordinance, the General jurisdiction of the
civil Court is barred
Habibur
Rahman Vs. Election Commissioner and others, 8BLD (HCD) 473
Section—26
Election matter—Bar of civil suit—
Rights which had no existence earlier and has been created by special laws and
which are alleged to have been infringed are required to he determined in the
manner prescribed by the said laws to which they owe their existence— The plea
that such laws do not provide for effective and adequate remedy is untenable in
view of the intention of the legislature that the civil Courts are not to take
cognizance of such dispute.
Mostafa
Kamal Ahmed Vs. B.D. Habibullal, and others, 9BLD (HCD) 326
Ref:
ILR 31 Born 604: PLD 1949 Lah 0l: 39 DLR 451: AIR 1937 All 365: 27 DLR(AD) 138:
BCR 1988 HCD 61; 40 DLR 459: 44 CWN 709— Cited.
Section—26
Maintainability of suit—whether
question of maintainability can be decided while disposing of an appeal
relating to injunction— In the instant case without going into any in—
visitation of facts. simply upon a plain reading of the plaint it may be held
that the Local Govt. Ordinance is a bar against the suit in a civil Court—When
it was contended before the appellate Court that the suit was not at. all maintainable
the judge did not commit any error of law in deciding the question in the
appeal which arose out of an application for vacating temporary injunction.
Md.
Shamsul Haque Mollah Vs. Md. Latifur Ralunan, 9 BLD (HCD) 524
Ref:
40DLR459: 26 DLR 10—Cited. Section—26
Obstruction against voting—Forum for
decision—The allegation that voters were obstructed from casting their votes is
purely an election dispute for the determination of which specific forum has
been created.
Laizu
Beguni and others Vs. Election Conunission and others, IOBLD(AD) 78
Section—26
Publication of election result-—Publication
of names of returned candidates of Union Parishad in the official
gazette—Whether Election Commission is entitled to interfere with the result
after the gazette notification— The Rule under which interference was made does
not have any expression enabling the Election Commission to interfere when the
result is actually published in the official gazette—Once a notification is
published the aggrieved candidates acquire a legal right to submit an election
petition and the period of limitation is counted from the date of publication
of the gazette notification—The nature of the notification is such that if it
is allowed to be interfered with then it breaks a chain of rights and plays
havoc with the scheme propounded by the legislature in disposing of
post—election matters.
Hazrctt
Ali Vs. Election Commission and others, 10BLD (HCD) 157
Section—29( 4)
District Judge—Whether a Court or a
persona designata whiie hearing election appeals—Though the T)istrict Judge in
the Union Parishad Ordinance has not been described as a district Court that
does not mean that he is not a Court or he is not a district Court—The Local
Government (Union Pan- sad) Ordinance, 1983 S.29((4).
A.K.M.
Ruhul Amin Vs. District Judge and Appellate Election Tribunal, Bhola and
others, 5BLD (HCD) 321
Ref:
1 977—78(BSCR) 254: 29DLR ( SC)295: AIR1944 Nag 288: ILR Bom(l897) 279: AIR
1926 Born.26: AIR 1933 Born 105: 27 DLR 273—Cited.
Section—29(4)
Revision lies against decision the order of
District Judge—Whether Revision or Writ Petition lies against decision of
the District Judge in election appeal—The District Judge under the Local
Government Ordinance is a District Court sub-ordinate to the High Court Division—Revision
lies against the decision of the District Judge as the petitioners could have
the same relief as have been prayed for in the writ petitions Only in
exceptional cases of want of jurisdiction and ex-facie illegality writ
applications were maintained inspite of detonative remedy being available.
A.K.M.
Ruhul Ainin Vs. District Judge and Appellate Election Tribunal, Bhola and
others, 5BLD (HCD)321
Ref:
I9DLR (SC)5l6 27DLR373: 22 DLR(SC )443—Cited.
Section—29
Appeal against decision of Election Tribunal
after fresh election—Appeal against decision of the Election Tribunal after
fresh election but within the time allowed under the amended provision for
appeal— Whether an appeal is maintainable against order of the Election
Tribunal setting aside election of a particular ward of the Union Parishad and
directing holding of fresh election, after fresh election was held, by one who
lost in the fresh election without filing an election Petition against the
result of the fresh election—There being no election petition against the
exparte order of the Election Tribunal which has become final and there being
also no election petition against the election held later, respondent No.3
cannot prefer an appeal u/s 4 or S.29 of the Local Government (Union Parishad)
Ordinance, 1983 as amended by Ordinance No.XLIV of l984Per S. Ahmed J.
agreeing): From the evidence adduced by the appellant which remains
unchallenged, the allegation in the election petition and the dilatory tactics
adopted by respondent No.3, it is clearly found that the election was
materially affected in ward No.3 by certain acts of respondent No.3 in
violation of rules. On merits it is found that the Tribunals decision should
not have been reversed.
Mahrnudul
Haque Ghowdhury Vs. The District Judge, Chitta gong, 6BLD (HCD) 139
Election Matter
Recounting of ballot papers—Whether
Returning Officer can recount ballot papers— The Returning Officer has no
jurisdiction to recount votes—Collusion has been found between the Returning
Officer and the Presiding Officer to vary the result of the election arrived at
by counting votes at the polling station—In view of such finding no case has
been made out for recounting of votes—High Court Division was not justified in
directing recounting of votes after such a long time specially when sufficient
ground has not been laid for ordering recounting—Each case is to be decided on
its own merit—In the facts of the case, no case has been made out for
recounting of votes—Local Government (Union Parishad) Ordinance (II of 1983)
and Union Parishad (Election)Rules rr. 38 & 3.9.
Md. Badrul Alam Chowdhuiy Vs. Md. Abdul
Mannan and others, 6BLDMD)257
Section—29(4) read with Rules—47 and 48
District Judge.—.Whether a Court or
persona designata while hearing appeals against the decision of the Election
Tribunal under the Local Government (Union Parishad) Ordinance—It is difficult
to find fault with the draftsman when he used the expression “District Judge’
instead of “District Court” ii it was meant that he should exercise the powers
of a Court—Such an use is capable of no other meaning than meaning District
Court— When a District Judge has been defined as “the judge of the Principal
civil Court of original jurisdiction” by using this expression empowering him
to hear appeal from the decision of an election Tribunal, it cannot be intended
that he is to act as a persona designata—District Judge under the Ordinance
means the District Court.
A.K.M.
Ruhul Arnin Vs. District Judge and Appellate Election Tribunal, Bhola and
others, 6BLD (AD)267
Ref:
7DLR287; 26DLR 157; PLD 1974 Sc 139; PLD 1972 Sc 279; AIR 1977 Sc 1703; AIR
1968 A.P. 28: 29DLR (AD) 295; AIR 1934 PC8I;AIR 1936 PC 93; AIR 1948 PC 12; 27
DLR 388; 27 DLR 373; ILR (1897)21 Born 279: AIR 1926 Born 344; AIR 1933 Born
105; AIR 1944 Nag288; AIR 1949 Lah 131—Cited.
Section—29
Recounting of votes by the Tribunal—
Whether recounting done intermittently by’ different presiding officers and the
use of the consolidated result sheet by the Election Tribunal. which ultimately
delivered the judgment on the basis of the records which were not prepared by
can be objected to—The Tribunal in its final judgment has objectively disposed
of each and every objection raised by the appellant in the matter of not
counting particular ballots in his favour and counting sonic in favour of the
respondent—No- objection can be taken to the use of the matters on record of
the case by the succeeding positing officers of the Tribunal, because the law
clearly provides for such use.
Moulana
Mokhter Ahmed Vs. Mohammadul Mokhter Usmani and others, 8BLD (AD) 125
Section—29
Election matter—Extent of jurisdiction
of the Election Commission—The Election Commission has not only supervisory
jurisdiction in the entire matter to oversee that the election is conducted
honestly and fairly, it can also exercise such power including the power to
review orders passed by any officer and make consequential orders for ensuring
a fair election—It is eminently within the jurisdiction of the Election
Commission to order re-poll upon review of the circumstances of a given
case—Election is needed to sustain democracy: a perverse election or voterless
election destroys the whole election process and as such the power of review
given to the Election Commission is of necessity an imliurtant one for holding
elections justly—The real issue is completion of free and fair election with
rigorous promptitude—All election disputes must wait pending completion of the
election and be taken for examination to the appointed instrumentality, viz,
the Election Tribunal.
A.F.M.
Shah Alan, Vs. Mujibul Huq and others, 9BLD(AD) 78
Ref:
AIR 1952 (SC) 64; 15 DLR(SC) 283; 19 DLR(SC) 516; AIR 197$ (SC) 851: 18 DLR(SC)
426—Cited.
Section—29
Election matter—Writ Court not to ent
into controversy relating to such matter—En an election dispute the issue is to
he raised and evidence adduced for adjudication b a competent Tribunal——This
function has bees given to the Election Tribunal and to nowhet else—By taking
resort to extra-ordinary jurisdiction for a writ in such a matter the High
Court Division will be asked to enter into a territory which is beset with
disputed fact and certainly by well—settled principles clear a writ court will
not enter into such controversy—The writ jurisdiction cannot be invoked except
on the very limited ground al total absence of jurisdiction or in law to
challenge any step in the process of elec tion including an order passed by the
Electi.m Commission—The larger issue of completion of fair election with
rigorous promptitude for timely emergence and functioning or elective bodies
must take precedence over settlen of private disputes.
A.F.M.
Shah Alanz Vs. Mujibul thiq a others, 9BLD (AD) 78
Ref:
AIR 1952 (SC) 64; ‘ IS DLR(S 283: 19 DLRtSC) 516; AIR 1978 (SC) 851; 18 DLR(SC)
426—Cited.
Section—29
Election matter—Petitioner getting the
highest number of votes found disqualified to be elected Chairman of the Union
Parishad— Whether candidate with the next high number of votes can be declared election
Chairman—The proper order in such a ea should have been to declaration a whole
void and direct the election authorities to hold a fresh election for the
chairmanship.
Md.
LaL Miah Vs. Md. FazIul Haque Bhuiyan and others, 9BLD (HCD) 398
Section—29(4)
Election matter—Whether District Judge
acting as the appellate authority is authorised to transfer an appeal arising
out of an election dispute—It appears provision for transfer of appeal by the
District Judge has been inserted in different special statutes so that
congestion of appeals in one single Court and resultant delay in their disposal
may be avoided— When the legislature confers a special jurisdiction on a
recognised Court it may lay down the manner in which it is to be exercised, but
if it is silent then all rules of procedure that apply to its ordinary
jurisdiction will he attracted in regard to the special jurisdiction—if
jurisdiction clearly conferred on a court is to be ousted, the exclusion of
such jurisdiction must be made in clear term.
Mohammad
Zulfikar Vs. Abul Kalam Chowdhury and others, 10BLD (AD) 58
Section—29(4)
Transfer of appeal—Whether a District
Judge can transfer an appeal preferred to him from a decision of the Election
Tribunal—The cumulative effect of the relevant provisions in the Code of Civil
Procedure and the Civil Courts Act is that the District Judge as referred to in
the Local Government Ordinance has ample authority to transfer such an appeal
to any Court subordinate to him—The expression ‘any” before the expression
‘appeal” in %ec.24(i) of the Code of Civil procedure gives the District Judge
an unfettered power of transfer of such appeal to any Court subordinate to him
except the Court of the Assistant Judge.
Muhammad
Zulfikar Vs. Abul Kalam Chowdhury and others, 10BLD (HCD)194.