LOCAL GOVERNMENT (UPAZILA PARISHAD AND
UPAZILA ADMINISTRATION AND ORGANISATION) ORDINANCE, 1982
Section—2A
Locus standi and maintainability 1 Writ
Petition—The petition is not maintalaable for not impleading the authority
making the delimitation of the areas respondent in case as the objection to the
same cannot he effectively decided in the absence of suck authority which is in
possession and customer of relevant materials——Delimitation of the area of
Upazilas can affect the residents of the villages taken away from one Upazila
to another and not the petitioner who is not resident of any such village and
as such he has no locus standi to challenge the same.
Ziaul
Hoque Vs. The Election Commission, Sher-E-Bangla Nagar, Dhaka and others, 10BLD
(HCD) 386
Section—4(3)
Acting Chairman—Acting Chairman
contemplated by the Upazila Parishad Ordinance—Whether he is a representative
merrier able to exercise the powers of such a member—It is apparent that the
full emphasisis on the elective representation—Acting Chairman merely functions
in the office when the office is vacant but he is not holder of the office as
chairman—The holder of the office is the person who is directly elected and it
cannot vest in the office of the person who is indirectly elected—In the
definitive clause of the statute it has been said chairman means Chairman of
the Union Parishad and it does not include any other persoR—It is an exclusive
expression, not inclusive.
Abdul
Mannan Bhuiyan and others Vs. Monirul Huq and others, 9BLD(AD)146
Section—4(3)
Representative member—Who can be such a
member of the Upazila Parishad—The legislature has intended to attribute a
right to the Chairmen of the Union Parishads to be the representative member of
the Upazila Pan- shad because of their such position and status —It is a vested
right of the chairman, not of the Union Parishad, to be the representative
member of the Upazila Parishad—Unless one is in the position of a Chairman of
the Union Parishad he is not entitled to be termed as the representative member
of the Upazila Parish ad.
Md.
Monirul Hoque Vs. Government of the People’s Republic of Bangladesh and others,
9BLD(HCD) 119
Sections—4(3) and 13(2)
‘Acting chairman”—Whether his status is
equivalent to that Of the ‘Chairman’ and whether he is entitled to participate
in no- confidence procedures—The concept of “Acting Chairman has been brought
into the Ordinance for a limited purpose—”Acting Chairman’ is basically an
elected member of a particular ward of the Union and he represents only a part
of the Union in the Union Parishad as its elected representative —Had it been
the intention of the legislature to up trade the status of the “Acting
Chairman” equivalent to that of thç “Chairman” then the language of the law
would have been couched otherwise—The Legislature has used specific
well—defined term to quality one definite person to be the representative
member of the Upazila Panshad, presumably to uphold the. democratic character
of the Local Government institutions—”Acting Chairman” cannot therefore be read
within the meaning of “Chairman” for the purpose of making him a representative
member of the Upazila Panishad in order to allow him to participate in the
no—confidence proceeding against the Upazila Chairman.
Per
Syed Fazie Ahmed, J(concurring): Had Acting Chairman been vested with the right
to vote in no-confidence proceedings for the removal of Can elected Chairman of
Upazila as a representative member, the legislature would have certainly used
the words “Acting Chairman” or chairman includes “Acting Chariman from using
the word Act-. ing Chairman in sub-sec. 3 of sec. 4 of the Upazila Parishad
Ordinance with a view to preserve the democratic spirit of Union Panishad
institution. It is the chairman who is elected on adult franchise basis within
Union Parishad but Acting . Chairman is not so elected. This: is the important
feature which distinguishes the status of the Chairman from that of the Acting
Chairman and it is in keeping with the democratic principle.
Md.
Monirul Hoque Vs. Government of the People’s Republic of Bangladesh and others,
9BLD (HCD) 119
Section—6(2)(a)
Classification in legislation—Principles
of permissible classification—Question of infringement of equality,
clause—Intelligible and understandable classification does not infringe the
equality clause—When understanabie criteria are visibly present in the
Ordinance itself, it cannot be said that the impigned provision has made
arbitrary and fanciful classification of the Chairman—Object for legislation is
in the realm of the Legislature, the Court having little to do with it—If the
impugned provision causes any evil in the local Government institutions, the
Legislature shall face trial before the electorate.
Abdul
Mannan Khan vs. Government of the People’s Republic of Bangladesh and others,
10BLD (HCD) 161
Ref:
41 DLR (AD) 25; AIR 1951 (AC)4 1; AIR 1952(SC) 75; 1963(SC) 768 and AIR I
967(SC) 69 i—Cited.
Section—6(2)(f)
Disqualification for election as or for
being a Chairman of Upazila Parishad— Whether pendency of a bill for
payment after the completion of a contract is a pecuniary interest for such
disqualifications—-As the bill was submitted after the claimant was elected
Chairman he is in a position to influence the clearance of the bill—Bill for
payment of money is certainly a pecuniary interest of the claimant. Had the
bill been scrutinized and passed before his election then probably a case could
have been made out to say that he has got no more any pecuniary interest in the
matter—Pecuniaryinterest is an interest of any kind, whether it is in
connection with the contract or is independent of it, for the law provides that
person having any pecuniary interest in the affairs ofthe Parishad is debarred
from seeking or from acting as the Chairman.
Md. Mostafa Hossain Vs. Sikander Md.
Faiuque and another, 7BLD (AD) 315
Ref:
AIR I 966(SC) 580—Cited.
Section—6(2) (f)
Disqualification for election—Disqualification
for “any pecuniary interest”— Whether due to pendency of his bills after
execution of work done as a contractor by the elected chairman it can be said
that he had pecuniary interest in the affairs of the Upazila Parishad—A bill
for payment of money on account of some wor,k done is not payable as a matter
of course, but it requires to be examined, sanctioned and then passed by an
order of the Parishad of which the claimant is himself the Chairman—He is in a
position to influence the clearance of the bill—The High
Court
Division has correctly interpreted the law that the appellant has pecuniary
interest in the affairs of the Upazila Parishad and he got no authority to hold
the office.
Md.
Mostafa Hossain Vs. Sikder Md. Faruque and another, 8BLD (AD) 170
Section—6(2)(f)
Election dispute—Nature of the
proceeding—Whether right, title and interest of other persons, unconnected with
the election dispute, can be settled by an Election Tribunal—It cannot be
decided in an election petition whether a partner obtained some work for his
personal benefit or as a partner representing his partnership firm—It is very
much a matter between the partners themselves and the Upazila Parishad
concerned that issued the work order—There are matters between partners and
certainly the Election Tribbunal or the appellate Court is not the forum for
determination of such question in the absence of the partners—Partnership Act
(IX of 1932) Ss.l6(b), 22. and23.
Mafizur
Rahrnan Manju Vs. Md. Mahmudiin Nabi and others, 8BLD (HCD) 509
Ref:
PLD 1967 Dhaka 35; PLD l957 (SC) (Pak’) 30 I—Cited.
Section—6(2) (f)
Disqualification for election—When
disqualification for Upazila Parishad election on grounds of pecuniary interest
as contractor continues—Assuming that the respondent had severed connection
with the partnership firm he being a party to the contract with the Upazila
Parishad and his pecuniary interest having continued at the time when he was
contesting the election, he comes within the mischief of law as a disqualified
person.
Md Mahmudun Nabi Vs. Mafizur Rahman Man/u
and others, 10 BLD (AD) 132
Ref:
8BLD (AD) 170—Cited.
Section—6(2) (f)
Respondent
was a party to a contract with the Upazila Parishad and his pecuniary interest
had continued at the time when he was contesting the election and continued
after the-election as it transpires that he withdraw some security money, after
the election although the work was not finished, yet, therefore, he comes
within the mischief of law as a disqualified person.
Md.
Mahmudun Nabi Vs. Mafizur Rahman Manju and others, 10BLD (AD231
Section—13A
Suspension of Upazila Chairman—Suspension
on account of pendency of criminal proceedings whether sustainable in law— “The
opinion of the Government” for such action must have certain rational basis—The
term “opinion” means “formal statements of reasons for judgment given” —The
literary meaning of the word also warrants some basis for its formation—Had it
been the intention of the law—makers that mere – pendency of criminal cases
would be sufficient to invoke the extra—ordinary executive authority of the
Government to dislodge an elected public representative from his office then in
the latter part of the relevant provision of law there was no logical necessity
of bringing the qualifying clause as to the “opinion” of the Government—It can
thus be said pendency of criminal cases against any Chairman may be the cause
of hissuspension provided the effect of such cause is likely to be prejudicial
to the interest of the Parisand or undersirable from the point of view of
public interest if the Chairman is allowed to continue as such—If the provision
for suspension is interpreted in the way that mere pendency of criminal cases
is sufficient for formation of opinion to dislodge a chairman, it is likely to
make the scheme of the Ordinance to nourish democratic norms at the- grass—root
level unworkable.
Anwar
Hossain Majhi Vs. Government of Bangladesh and – others, 10BLD (HCD) 240
–
Ref:
I BLD (AD) 196—Cited.
Section—20
Election petition—Whether – it can be
filed by one who withdrew his nomination paper—An election petitiOn is filed to
question the election itself—In a matter like this a person who had withdrawn
his nomination paper before the election was held got no interest in the
celection—The contention that such a person was a candidate and had an
alternative remedy by way -of election petition is found to contain no
ubstance.
Md. Mostafa Hossain Vs. Sikder Md. Faruque
and another, 8BLD (AD) 170
Section—60
Rejection of plaint— Whether plaint can
be rejected for non-service of notice required to be served before filing the
suit—Primary Teachers transferred by Upazila Education Officer—Order of
transfer challenged without serving notice u/s 60 of the Ordnance No.59 of
1982—Rejection of plaint for non-service of such notice in the facts and
circumstances of the case is not legal— Code of Civil Procedure (Vof1908) Or.7r
11
It
appears that in order to decide whether the suit is barred under Article 60 of
Ordinance No.59 of 1982 the Court will have to go beyond the plaint and examine
some other materials. If after going into the trial of the suit the Court
findsthat the suit is not maintainable the Court can dismiss the suit. But on
that ground a plaint cannot be rejected. The rejection of the plaint is not
identical with the dismissal of the suit –
Md.
Aminur Rahman and another Vs. Manindra Nath Das and others, 6BLD (HCD)357 –
Ref:
26DLR 111—Cited.
Section—60
Rejection of plaint—Rejection on the
ground of non-service of the statutory notice—To file a suit against the
Upazila Parishad the service of prior notice is a must—Without such notice the
suit must be held to be barred by the law—The plaint is liable to rejected for
non-service of the notice.
Muladi
Upazila Parishad Vs. Moulana Shamsul Huque, 9BLD (HCD) 59
Ref:
6BLD 357; 39DLR(AD) I; AIR 1936- Mad 547; ILR 35 Born. 362; XXII DLR (WP)
295—Cited.