Miah Lutfi Hossain Kasru and others Vs. Bangladesh

Miah Lutfi Hossain Kasru and others (Petitioners)

Vs.

Bangladesh represented by the Secretary Ministry Local Government & others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Latifur Rahman CJ  

Bimalendu Bikash Roy Choudhury J

AMM Rahman J

Mahmudul Amin Choudhury J

Judgment

March 5, 2000.

The Pourashava Ordinance, 1977 (XXVI of 1977), Section 21(1)

Section 21 of the Pourashava Ordinance, 1977 is Directory and not mandatory, it is within province of the Delimitation Officer to take into consideration distribution of population as far as practicable vis-a-vis the territorial unity and administrative convenience. Variation of population alone cannot be a ground to render invalid a report of the delimitation finally published…………………(8)

Lawyers Involved:

Moudud Ahmed, Senior Advocate (with Azizul Haque, Advocate) instructed by Mvi. Md. Aftab Hossain, Advocate-on-Record — For the Petitioners. (In both the Petitions)

Shahabuddin Ahmad, Deputy Attorney-General (Obaidur Rahman Mostafa, Deputy Attorney-General with him) instructed by SH Siddique, Advocate -on-Record — For the Respondents (In Civil Petition No. 1260 of 1999).

Md. Amir Hossain, Advocate-on-Record — For the Respondents (In Civil Petition No. 1261 of 1999).

Civil Petition for Leave to Appeal No. 1260 of 1999 with Civil Petition No. 1261 of 1999.

Judgment

AM Mahmudur Rahman J.- These petitions for leave to appeal by the writ-petitioners of Writ Petition Nos. 2259 and 1787 of 1998 are from a common Judgment and order dated 7-7-99 made in the Writ Petition No. 1787 of 1998 and accordingly these petitions are disposed of by this judgment.

2. The petitioner of the Writ Petition No. 787 of 1998 is a ward commissioner of newly created ward No. 4 of Lalmohan Pourashava, District Bhola. He challenged the Final Notification dated 9-6-1998 of the Delimitation Officer Annexure-to the writ petition) relating to limitation of 3 wards into 9 wards of the Pourashava on the ground of violation of section 21 the Pourashava Ordinance, 1977 stating that limitation was made by the Delimitation Officer without taking into consideration territorial unity, distribution of population and administrative convenience and that without making any enquiry pd obtaining any opinion of the local people and at respondent No. 2, Deputy Secretary (Poura) also did not consider the report along with Mouza map showing distribution of population of the Lalmohan Pourashava and that variation of population was more than 10% in most of the wards.

3. Respondent Nos. 1 and 2 contested the Rule by filing two separate affidavits-in-opposition denying material allegation made by the petitioner stating, inter alia, that the notification was published in compliance with the provision of the ordinance.

4. The petitioner of Writ Petition No. 2259 of 988 also challenged the Notification published on 2-7-98 relating to delimitation of 3 wards into 9 wards of Chowmuhani Pourashava stating that while delimitating the wards the Delimitation officer did not take into consideration variation of population which was more than 10% from one ward to another and that without informing the Chairman delimitation was made in violation of section 21 of the Ordinance and that the report of Delimitating Officer which was sent to the Ministry Local Government and Co-operative was arbitrary and that it was prepared at the instance of me interested quarters.

5. The Rules issued in Writ Petitions were contested by the respondent by filing Affidavits-in opposition denying material allegations made in the Writ Petitions stating that the petition is not maintainable. It is malafide and that the impugned Gazette Notification was published in compliance with the requirement of the Ordinance and that during process of delimitation territorial unity, distribution of population and administrative convenience, as far as practicable were taken into consideration.

6. The learned Judges of the High Court Division on consideration of materials on record and examining the relevant file of the office of the Thana Nirbahi Officer Lalmohan, in the first writ petition found that population census of 1991 showed 39 increase of population per year and that question o variation of population taken in the other petition is disputed question of fact which cannot be resolved ii Writ Jurisdiction and that section 21(1) of the Ordinance is not mandatory but directory and that the variation of 10% of population are to be taken m consideration as far as practicable depending on facts of a given case and that there was no violation section 21 of the Ordinance.

7. Moudud Ahmed, learned Advocate for the petitioners, submits that there being violation section 21(1) of Pourashava Ordinance, 1977 the learned Judges of the High Court Division fell in en in holding that the dispute regarding variation population is a disputed question of fact which cannot be resolved in a Writ Jurisdiction and that the learned Judges were also wrong to hold that section 21 directory and not mandatory and that the lean Judges of the High Court Division fell in error in not holding that the Delimitation Officer did not take into consideration territorial unity, distribution population and administrative convenience.

8. It is the consistent view of this Division that section 21 of the Pourashava Ordinance, 197 Directory and not mandatory, it is within province of the Delimitation Officer to take consideration distribution of population as far as practicable vis-a-vis the territorial unity administrative convenience and variation population alone cannot be a ground to re invalid a report of the delimitation finally published.

9. Submissions of the learned Advocate merit no consideration.

Both the petitions are dismissed.

Ed.

Source: 53 DLR (AD) (2001) 25

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