Appellate Division Cases
Md. Nabiul Islam Chowdhury. ……………………………………..…Petitioner.
Joint Registrar, Divisional Co-operative Office, Rajshahi ………….. Respondents
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Date of Judgment
13th August 2005
Rule 19(1) of the Co-operative Societies Ain, 2001
Section 17(2)(b) of the Co-operative Society Rules, 1987
The petitioner submitted nomination paper for the post of Chairman of the Managing Committee along with 3 other candidates. After scrutiny, the election committee 3
Praying for fresh election after setting aside the election result. The petitioner (Respondent No.4 herein) of the Dispute Case did not pray for declaring him Chairman of Khetlal UCCA Ltd. rather he prayed for fresh election. The Joint Registrar illegally declared him Chairman though on such prayer was made in the Dispute Case (3)
Impugned judgment of the High Court Division and thereafter contended that the Civil Petition For Leave To Appeal No. 785 Of 2005.
(From the Judgment and Order dated 16th May, 2005 passed by the High Court Division
in Writ Petition No.158 of 2004)
award was passed by the joint Registrar in Dispute Case No.10 of 2003 against the said award and the petitioner could have preferred an appeal under clause 4 (2) of Section 50 of the Co-operative Society Ain, 2001 and in such view of the matter, the writ-petition has been by the writ-petitioner is not maintainable. He therefore contends that there is no illegality in the impugned judgment for interference by this Division (10)
A. B. M. Nurul Islam, Senior Advocate, instructed by A. K. M. Shahidul Huq, Advocate-on-Record For the Petitioner Md. Mozammel Haque, Advocate (appeared with the leave of the Court), instructed by Md. Aftab Hossain, Advocate-on-Record.. For Respondent No.4. Not represented ….Respondent Nos.1-3 and 5
1. Syed J. R. Mudassir Husain CJ : The petitioner is seeking leave against the judgment and order dated 16.05.2005 passed by a Division Bench of the High Court Division in writ Petition No.158 of 2004 discharging the Rule.
2. The petitioner obtained Rule under Article 102 of the Constitution calling upon the respondents to show cause as to why the impugned award dated 05-01-2004 passed by the Joint Registrar, Divisional Co-operative Office, Rajshahi Division, Rahshahi in Dispute Case No. 10 of 2003 (Annexure-1) should not be declared to have been passed
without lawful authority and is of no legal effect.
3. The short facts, as stated by the petitioner, in the writ-petition, are to the effect that he
was elected Chairman, Managing Committee of Upazilla Central Co-operative Association Ltd. Khetlal, Joipurhat (herein after referred to as Khetlal UCCA Ltd.). A voter list was prepared and Published for election of the Managing Committee of Khetlal UCC Ltd. Joipurhat in which the petitioner’s Co-operative Society, namely, Mundall Uttarpara Krishak Samabya Samity Ltd. has been shown as a voter in Block-8 at serial No.ll. According to Rule 16 of the Co-operative Societies Rule 1978, the election Committee -4vas appointed consisting of 3 members headed by the Upazilla Co-operative Officer, Khetlal, Joipurhat, The committee declared the election schedule of Khetlal UCCA Ltd. to be held on 02-10-2003. The petitioner submitted nomination paper for the post of Chairman of the Managing Committee along with 3 other candidates. After scrutiny, the election committee found the nomination papers of the candidates for the post to be valid and a date was fixed for filing objection appeal in respect of the list of valid candidates but no such appeal was preferred by any of the candidates. ^On 23-09-2002, the election committee further issued a notice distributing election symbols to the valid candidates. The petitioner was given ‘Mango’ as his election symbol. The election was held on 02-10-2003 and after counting of votes, the election committee in presence of the candidates declared the result in which the petitioner got the highest number of votes and accordingly he was declared as elected Chairman. The newly elected Managing Committee of Khetlal UCCA Lt. started its function and the first meeting convened and presided over by the Upazilla Rural Development Officer, Khetlal, Joipurhat was held on 04-10-2003. After the first meeting of the Managing Commttee of Khetlal UCCA Ltd. Ashraf Ali Mondal, a candidate for the post of Chairman, filed Dispute Case No. 10 of 2003 before the Joint Registrar, Divisional Co-operative Office, Rajshahi Division, Rajshahi praying for fresh election after setting aside the election result. The petitioner (Respondent No.4 herein) of the Dispute Case did not pray for declarig him Chairman of Khetlal UCCA Ltd. rather he prayed for fresh election. The Joint Registrar illegally declared him Chairman though on such prayer was made in the Dispute Case.
4. The petitioner challenged the said order of Joint Registrar allowing the dispute case and declaring the petitioner unfit and also declaring respondent No.4 as the Chairman by the award dated 05-10-2004 (Annexure-1 to the writ petition) and the petitioner obtained Rule in the aforesaid writ petition.
5. The respondent No.4 contested the Rule by filing affidavit-in-opposition, contending, inter alia, that the petitioner was not entitled to be elected Chairman of the Managing Committee of Khetlal UCCA Ltd. and not eligible to participate to that election because the petitioner made an application to the Ad-hoc Committee of the Khetlel UCCA Ltd. on 2907-2003 for membership and the application was considered by the Chairman of the Ad-hoc Committee and thus the petitioner became a member only on 29-07-2003. On the basis of resolution No. 133 dated 29-07-2003, the petitioner became a member of Khetlal
UCCA Ltd. A plain reading of Rule 19 (1) (c) of the Co-operative Societies Ain, 2001 reveals that there is a clear bar to participate in the election of Khetlal UCCA Ltd. unless a member completes a tenure of 12 months as a member. In view of that provision and also in view of Section 17(2) (b) of the Co-operative Society Rules, 1987, the petitioner was not entitled to submit nomination paper on 17-092003 as he got membership on 29-07-2003. The award impugned in the writ petition could be challenged before the Registrar by way of filing an appeal.
6. Upon hearing the parties, the High Court Division discharged the Rule, Hence, this leave-petition.
7. Mr. A.B.M. Nurul Islam, the learned Senior Advocate, appearing for the petitioner, having referred to the impugned judgment of the High Court Division, contended that the
learned Judges of the High Court Division committed an error of law in not holding that
the respondent No.4 filed an application before the Joint Registrar numbered as Dispute Case No.4 which was not maintainable because there was no scope to challenge the legibility of a candidate after scrutinization of nomination paper which was the only occasion for raising any such objection. Learned advocate next contended that the Joint Registrar had no authority to entertain a dispute case because he is the appellate authority and the dispute case should have been filed before the Deputy Registrar.
8. It has been further contended that the High Court Division committed an error of law in not holding that for the ends of justice any aggrieved person without availing forum of
appeal as an alternative remedy can invoke writ jurisdiction under Article 102 of the Constitution.
9. Mr. A. B. M. Nurul Islam lastly contended that as per law the Joint Registrar was not appellate authority according to the provision of Section 119 of the Co-operative Rules, 2004, the appellate authority is Registrar and he therefore argued that the Joint Registrar is not the authority to hear the appeals as the Registrar was the authority.
10. Mr. Md. Mozammel Haque, the learned Advocate appearing for the respondent No.4,
supported the impugned judgment of the High Court Division and thereafter contended that the award was passed by the joint Registrar in Dispute Case No. 10 of 2003 against the said award and the petitioner could have preferred an appeal under clause 4 (2) of Section 50 of the Co-operative Society Ain, 2001 and in such view of the matter, the writ-petition has been by the writ-petitioner is not maintainable. He therefore contends that there is no illegality in the impugned judgment for interference by this Division.
11. We have heard the learned Advocates of both the sides and considered their submissions. On perusal the impugned judgment of the High Court Division, we find that the learned Judges of the High Court Division having discussed and considered the case of the parties in proper perspective and in consideration of the relevant provision of law rightly decided the case. We are fully in agreement with the findings and decisions of the
High court Division. In the aforesaid premises, we find no merit in this petition.
Accordingly, it is dismissed.
Source: III ADC (2006) 928