Mohammad Julfikar Vs. Abul Kalam Chowdhury and ors

Mohammad Julfikar

Vs.

Abul Kalam Chowdhury and ors

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ah­med J

M.H. Rahman J

A.T.M. Afzal J

Judgment

November 6, 1989.

The Local Government (Union Parishad) Ordinance, 1983 (LI of 1983), sections 28 & 29(4)

The Code of Civil Procedure, 1908 (V of 1908), section 24

Whether the District Judge as Election Appellate Authority can transfer an appeal against the decision of the Election Tribunal to the Additional District Judge in the absence of any such power in the Local Government (Union Parishad) Ordinance, 1983?

Held: When the legislature confers a special or additional jurisdiction on a recognized 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 be attracted in regard to the special jurisdiction. It is a settled principle of law that if jurisdiction clearly conferred on a Court is to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms…(8)

Cases Referred to-

38 DLR (AD) 172 Musson V. Emile [1964] 1 WLR 337; Kirkness V. John Hudson & Co. Ltd. [1955] A.C. 696; Ormond Investment Co. V. Betts [1928] A.C. 143; A.K.M. Ruhul Amin Vs. District Judge and Appellate Election Tri­bunal, Bhola and others 38 DLR (AD) 172; Payne V. Bradley [1962] A.C. 343.

Lawyers Involved:

Shah Md. Sharif, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record— For the Appellant. (In Civil Appeal No. 40 of 1989)

T.H. Khan, Senior Advocate (M.A. Wahab Mia, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record— For the Respondent No. 1.

Not Represented— Respondent Nos. 2-70

Amiruddin Sircar, Senior Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record —For the Appellant (In Civil Appeal No. 61 of 1989)

A.T.M. Chowdhury, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record— For the Re­spondent No. 1.

Not Represented—Respondent Nos. 2-21.

Civil Appeal Nos. 40 and 61 of 1989.

(From the judgment and orders dated the 14th February and 23rd March, 1989 passed by the High Court Division, Chittagong Bench in Civil Revi­sion No. 16 of 1989 & Civil Rule No. 128 of 1989 respectively).

Judgment:

M.H. Rahman J.- These two appeals were heard one after another. In both the appeals the ap­pellant was elected as the Chairman of a Union Par­ishad. His opponent’s election petition being allowed by the Election Tribunal, the appellant preferred ap­peal before the District Judge. By different orders the District Judge transferred each of the appeals to the Additional District Judge for hearing and disposal. The High Court Division upheld the impugned or­ders of transfer.

2. The common question that calls for determi­nation in these two appeals is that whether the District Judge, acting as an appellate authority under sub-section (4) of section 29 of the Local Govern­ment (Union Parishad) Ordinance, 1983, is author­ised to transfer an appeal under section 24 of the Code of Civil Procedure to the Court of Additional District Judge.

3. It is contended that by an amendment, made on 9th July, 1984, sub-section (4) of section 29 was inserted and the District Judge was invested with power to hear appeal but with no express authority to transfer any such appeal. It has been pointed put that section 28 of the Ordinance has made specific provision for transfer of am election petition from one Election Tribunal to another Election Tribunal by the Election Commission. It is submitted that there being no such specific provision for transfer of the Election Appeal the District Judge acted without jurisdiction in transferring the appeals in question.

4. It has further been contended on behalf of the appellants that subsequent to 9th July, 1984 when the provision for appeal, sub-section (4) in section 29, was inserted by the Local Government (Union Parishad) (Amendment) Ordinance 1984, the District Judge has been named as an appellate author­ity in several enactments and he has been specifically invested with the power to transfer an appeal. In this regard our attention has been drawn to sub-section 7 of section 17 of the Family Courts Ordinance, 1985, to section 30 of the Premises Rent Control Ordi­nance 1986, and sub-section (5) of section 23 of the Local Government (Upazila Parishad and Upazila Ad­ministration Re-Organization) Ordinance, 1982. The learned Counsel for respondent No. 1 in C.A. No. 40 of 1989 has contended that in view of the decision reported in 38 DLR (AD) 172 and clear provision of section 24 of the Code of Civil Procedure later enact­ments need not be examined in this case. He has drawn our attention to the following from Maxwell’s Interpretation of Statutes (Twelfth Edition) at pages 69-70: “How far one may took at a later statute is questionable. (Musson V. Emile [1964] 1 WLR 337, per Edmund Davies, J. at P.343). The question was discussed by the House of Lords in Kirkness V. John Hudson & Co. Ltd. [1955] A.C. 696. where Lord Reid said (at p.735) that the earlier decision of the House in Ormond Investment Co. V. Betts [1928] A.C. 143 afforded “conclusive and Binding authority for the proposition that, in construing a provision of an earlier Act, the provisions of a later Act cannot be taken into account except in a limited class of cases, and that rule applies although the later Act contains a provision that it is to be read as one with the earlier Act. Of course, that docs not apply where the later Act amends the earlier Act or pur­ports to declare its meaning: in such cases the later Act operates by its own force. But where the provi­sions of the later Act could only operate indirectly as an aid to the construction of words in the earlier Act those provisions can only be used for that purpose if certain conditions apply to the earlier Act when it is considered by itself.” For the later statute to become relevant, there must be something “obscure or am­biguous, or readily capable of more than one inter­pretation” in the earlier one, some “phrase fairly and equally open to diverse meanings:—Ormond Invest­ment Co. V. Betts [1928] A.C. 143, per Lords Atkinson and Buckmaster at pp.164, 156. If such an am­biguity can be found, it becomes permissible to took at the later Acts “not perhaps to construe the earlier statute, but to see the meaning which Parliament puts on the self-same phrase in a similar context, in case it throws any light on the matter.—Payne V. Bradley [1962] A.C. 343 (per Lord Denning at p.357).”

5. It appears there were conflicting decisions as to the status of the District Judge when acting as an appellate authority under the Local Government (Un­ion Parishad) Ordinance, 1983. In A.K.M. Ruhul Amin Vs. District Judge and Appellate Election Tri­bunal, Bhola and others 38 DLR (AD) 172 as many as four appeals and one petition were considered. In that case this Court observed:

“It is difficult to find fault with the draft­sman when he used the expression “District Judge” instead of “District Court” if, it was meant that he should exercise the powers of a Court. Such an use in legal language, unless any contrary intention appears from the context, is capable of no other meaning than meaning District Court. When a District Judge has been defined as “the Judge of a Principal Civil Court of original jurisdiction” by using this expression for constituting the election appellate tribunal and empowering to hear him an appeal from the decision of an Election Tribunal, it cannot be intended that he is to act as a persona dcsignata. While making such legislation the law making authority is supposed to know the definition of such expression provided in exist­ing Act. Also, from the very context in which it has been used, it is evident that District Judge is not to act in his private capacity or any capacity other than a Court. This would appear from the qualifying words “within whose jurisdiction the election in dispute was held “used in Article 29 (4) of the Ordinance. The qualifying words ex­clude any other capacity which may be attributed to him, obviously enough, such jurisdiction means and refers to the jurisdiction he exercises while silting as a Court.”

6. An election dispute, relating to right to of­fice, is no doubt civil in nature and the procedure laid down in Rules 47 and 48 for the trial of such dis­putes is the same as that of an Ordinary Civil Court. After considering these rules it was held in Ruhul Amin’s case: “These provisions imply that if any appeal is provided against the decision of an Election Tribunal1 it must lie to a person or authority higher than such Tribunal and at the same lime exercising the powers and functions of a Court, particularly when the Election Tribunals are manned by Munsifs.”

7. As a measure of abundant caution, the legis­lature appears to have made specific provisions for transfer of an appeal in other enactments. In these cases there is no obscurity or ambiguity in the meaning of the terms of District Judge and his pow­ers. We need not refer to the later enactments that were made for different purposes.- see also Craies on Statute Law (Seventh Edition 171) pp. 146-148.

8. It appears provisions for transfer of appeal by the District Judge has been inserted ex abundanti cautela in some subsequent enactments so that the District Judge may not be asked to hear and dispose of different kinds of appeal, provided in different spe­cial statutes, himself, and that a great congestion of different kind of appeals in one single court and resultant delay in their disposal may be avoided. When the legislature confers a special or additional 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 be attracted in regard to the special jurisdiction. It is a settled principle of law that if jurisdiction clearly conferred on a Court is to be oust­ed, the exclusion of such jurisdiction must be made in clear and unequivocal terms.

10. In view of the above, we dismiss both the appeals. Civil Appeal No. 40 of 1989 and Civil Ap­peal No. 61 of 1989. No costs.

Ed.

Source: 42 DLR (AD) (1990) 83

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