Md. Abdur Razzaque (Petitioner)
The Chief Election Commissioner, Election Commission Secretariat, Sher-e-Bangla Nagar, Dhaka and others (Respondents)
Mohammad Fazlul Karim J
MA Aziz J
Amirul Kabir Chowdhury J
Abdul Baset Majumder, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record- For the Petitioner
Not represented- the Respondents.
Civil Petition for Leave to Appeal No. 1651 of 2004
(From the judgment and order dated 25.10.2004 passed by the High Court Division in Writ Petition No. 5732 of 2004).
Mohammad Fazlul Karim J.- The petitioner seeks leave to appeal against the judgment and order dated 25.10.2004 passed by a Division Bench of the High Court Division in Writ Petition No. 5732 of 2004 summarily rejecting the petition challenging the impugned notification dated 7.10.2004 passed by the respondent No. 2 for holding by-election with the previous candidates except the petitioner.
2. On the basis of notification for holding by-election to the post of Chairman, the petitioner along with others filed nomination paper on 1.1.2003. On 2.1.2003 the petitioner deposited the loan amount to the authority concerned and thereby ceased to be a defaulter but on scrutiny by the returning officer, his nomination paper was found invalid on account of defaulter in payment of loan. An appeal, therefrom, was also dismissed. That the petitioner thereafter moved the High Court Division in Writ Petition No.455 of 2003 wherein while issuing the rule the petitioner was allowed to contest the election of No.3 Thakurkona Union Parishad under district Netrokona but the result of the election shall abide by the final decision in the rule issued by the High Court Division after hearing of the rule. The petitioner was, however, elected Chairman and his result was gazetted in 29.3.2003. The rule was, however, discharged on 27.4.2003. Accordingly, the respondent No.2 issued the impugned notification for holding election to the said post of Chairman of the said Union. Thereafter, the petitioner moved the High Court Division in Writ Petition No.5732 of 2004 and the petition was summarily rejected against which the petitioner moved this Court.
3. Mr. Abdul Baset Majumder, the learned Counsel appearing for the petitioner submitted that the office of Chairman of No. 3 Thakurkona Union Parishad has fallen vacant as the petitioner was declared disqualified to hold the post for being a defaulter of bank loan in Writ Petition No.455 of 2003 by High Court Division and in the circumstances Rule 9(3) of the Union Parishad (Election) Rules, 1983 mandates holding of by election for the office keeping nomination for the election open for all eligible candidates and the rule does not restrict the candidature in the way the impugned notification has restricted and hence the impugned notification so far as it restricts the candidature by excluding the petitioner is unauthorized in law and is liable to be declared to have been made and passed without lawful authority and is of no legal effect.
4. It appears that the petitioner ceased to be a candidate as a defaulter in an election schedule at which he filed the nomination paper as on 01.01.2003 and the authority concerned has issued the impugned notification for holding the said election to the post of Chairman. Thus there is no scope for application of rule 9(3) of the Rules or allowing the petitioner to contest as a candidate at the said election.
In that view of the matter, there is no substance in the submission of the learned Counsel for petitioner.
The petition is dismissed.
Source: 11 MLR (AD) (2006) 416