Moulana Abdul Matin Vs. Oli Ullah Khan and ors

Moulana Abdul Matin (Appellant)

Vs.

Oli Ullah Khan and ors (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ah­med J

M.H. Rah­man J

A.T.M. Afzal J

The Union Parishad (Election) Rules, 1983 Rule 70

The High Court Division ought not to have interfered in the matter of highly disputed question of facts. The election commission acted within its jurisdiction under rule 70 of the Union Parishad (election) Rules, 1983 in directing re-election…………………..(7)

Lawyers Involved

M. Nurullah, Senior Advocate, instructed by B. Hossain, Advocate-on-Record—For the Appellant

Md. Fazlul Karim, Senior Advocate, instructed by A. Basel Majumder, Advocate-on-Record—For Re­spondent No. 1.

Not Represented—Respondent Nos.2-4.

Civil Appeal No. 22 of 1989.

(From the judgment and order dated 8th January, 1989 passed by the High Court Division, Dhaka in Writ Petition No. 264 of 1988).

Judgment:

M.H. Rahman J.- This appeal is directed against the judgement and order dated 8th January, 1989 passed by a Division Bench of the High Court Division, Dhaka in Writ Petition No.264 of 1988 making the Rule absolute. In that petition respon­dent No. 1, Oli Ullah Khan, challenged an order dated 1.4.1988 of the Election Commission directing to hold re-election in two Centres namely, Rajapur Pri­mary School Centre and Ultarda High School Centre of No. 11 Uttarda Union Parishad under Laksham Upazila, District Comilla, within 9th to 16th April, 1988. In that Writ petition respondent No. 1 asserted that the polls were held peacefully in the aforesaid two centres on 10th February 1988; that the results were declared by the Presiding Officer and sent to the Returning Officer in Form ‘K’; and that after consol­idating the result received from various centres the Returning Officer declared respondent No. 1 as the elected Chairman and forwarded the result in Form ‘L’ to the Election Commission, but The latter ille­gally passed the impugned order for re-election.

2. The appellant contended before the High Court Division that he made a representation to the Election Commission for re-poll of the aforesaid two centres on the ground that there were serious disturbances in those two centres which were captured by armed miscreants, and that the Presiding Officers de­clared the result of election after accepting bribe from one of the contested candidates.

3. The High Court Division in making the Rule absolute, considered that the name of Oli Ullah Khan was published in the Bangladesh Gazelle on 13th June, 1988 i.e. two months after the issuance of the Rule, as the elected Chairman of the concerned Union Parishad and observed:

“This only shows that there were enough materials in the hands of the Election Commission on 13.6.88 to declare the petitioner as the elected Chair­man of the concerned Union Parishad. The case of the petitioner that the Presiding Officer and The Re­turning Officer after counting the votes and consoli­dating the result thereof declared him as the elected Chairman finds support from this Gazette notifica­tion Annexure-H”.

4. Mr. Fazlul Karim, learned Counsel for the respondent, placed great reliance on this observation of the High Court Division.

5. Let us give some dates. On 1.4.1988 the Election Commission gave the order for re-election. On 7.4.1988 respondent No. 1 filed Writ petition be­ing No.264 of 1988 in the High Court Division and obtained a Rule and also an order of stay. Presuma­bly because of the order of slay the result of the elec­tion was published in the Bangladesh Gazelle on 13.6.1988, but subsequently on 20.7.1988 the Elec­tion Commission by its corrigendum published in the Bangladesh Gazelle omitted the name of Oli Ul­lah Khan from the list of successful candidates.

6. The notifications that were published in the Bangladesh Gazette during the pendency of the Writ petition will necessarily follow the result of this ap­peal.

7. From the affidavits filed by the parties be­fore the High Court Division it appears there were serious allegations and counter allegations as to the manner of poll in the two disputed centres. The High Court Division ought not to have interfered in this mailer invoking highly disputed questions of facts. On consideration of the papers placed before it the Election Commission appears to have acted within its jurisdiction under Rule 70 of the Union Parishads (Election) Rules, 1983 and directed for re-election in this case. In the facts and circumstances of the case and in view of this Court’s decision dated 19th Feb­ruary, 1989 in Civil Appeal Nos.40, 38 and 29 of 1988 with Civil Appeal Nos. 2, 3, 4, 5, 8 and 17 of 1989 we hold that the High Court Division acted il­legally in interfering with the Election Commis­sion’s order for re-election.

8. In the result, the appeal is allowed. The judgment and order of the High Court Division, passed in Writ Petition No. 264 of 1988, is set aside and the Writ is re-called. No costs.

Ed.

Source: 42 DLR (AD) (1990) 76

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