Mozzammel Haq (Appellant)
Bangladesh and others (Respondent)
Kemaluddin Hossain J
Fazle Munim J
K.M Subhan J
March 01, 1978.
Ahmed Sobhan, Senior Advocate, instructed by S. M. Huq, Advocate-on-Record-For the Appellant.
Md. Abdul Aziz, Advocate-on-Record- For the Respondent No. 5.
Not Represented-Respondent Nos. 1-4 and 6-7.
Criminal Appeal No. 96 of 1977
(From the Judgment and Order dated November 30, 1976 passed by the High Court in Writ Petition No. 18 of 1977).
Fazle Munim J.- This appeal by special leave arises from the judgment of a Division Bench of the High Court passed in Writ Petition No. 18 of 1977 summarily rejecting the appellant’s petition wherein he impugned the orders of the respondent Nos. 2 and 3 ejecting his nomination paper and prayed for directing respondent No. 2 to make delimitation of the wards as per notification issued on November 30, 1976 and also for holding fresh election.
2. The appellant’s case is that he, being a voter of Union Char Gazi, submitted nomination paper, for membership duly proposed and seconded by two voters of ward No. 1 describing ward No. 2 in place of old ward No. 1 in the belief that the number of ward changed from ward No. 1 to ward No. 2, according to the gazelle notification published on December 9, 1976. According to this notification which was issued on November 30, 1976, two areas namely (1) South Toomchar and (2) Southern portion of Char Afzal up to Rashidia Road of Union Parishad No. 10 Char Ramiza were included in the Union Parishad No. 12 of Char Gazi of P. S. Ramgati, Noakhali. The notification is as follows:-
“OFFICE OF THE DEPUTY COMMISSIONER NOAKHALI (L.G.R.D. Section)
Noakhali the 30th November, 1976
No. 1087-LGRD – In exercise of power conferred upon me under Article of the Bangladesh Local Councils and Municipal Committees (Dissolution and Administration) Order, 1972 (P.O. No. 7 of 1972) I, Ziauddin Mohammad Chowdhury, Deputy Commissioner, Noakhali, do hereby notify for general information that South Tumchar Mouza and southern portion of Char Afzal Mouza up to Rashidia road of Union Parishad No. 10 Char Ramiz is included with Union Parishad No. 12 Char Gazi of P.S. Ramgati in the district of Noakhali as per Schedule below:
The notification shall take place from the date of issue:
Names of Mouzas have been included with Union Parishad No. 12 Char Gazi being excluded from Union Parishad No. 10 Char Ramiz.
(1) South Toomchar
(2) South portion of Char Afzai mouza upto Rashidia road of Union Parishad No. 10 Char Ramiz.
(a) East-Bauggar River
(b) West-Barakheri mouza and Char Ramiz mouza
(c) North-Char Afzal mouza (north) and, Uttar Toomchar mouza Rashidia road.
(d) South-Megna river.
ZIAUDDIN M. CHOWDHURY
3. On December 14, 1976 one Ahmed Miah, ex-Chairman of Char Gazi Union had, in consultation with seventeen other members including the appellants, applied to the Additional Deputy Commissioner (Development), Noakhali, for re-arranging the wards of union No. 12 after including the aforesaid areas. Further, it was suggested that the old wards should be re-constituted by treating the aforesaid areas as ward No. 1 of Char Gazi union and all the remaining wards and old ward Nos. 2 and 3 should be re-arranged as ward No. 3 of old ward No. 1 should be re-arranged as ward No. 2. In spite of this application which was forwarded to the respondent No. 2 on December 15, 1976, he fixed December 18, 1976, as the last date of submission of nomination papers. The nomination papers of all the seventeen persons including the appellant were rejected by respondent No. 3 after scrutiny on December 20, 1976, the ground being that his nomination paper like theirs bore the wrong number of word. The appellants as well as the other candidates for membership and two candidates for the post of the Chairman in the union of whose nomination paper were also rejected on the same ground filed appeals before respondent No. 2. All the appeals excepting that of Ahmed Miah, a candidate for Chairmanship was dismissed. Being aggrieved, the appellant moved the aforesaid writ petition which was summarily rejected on the ground, among others, that in the absence of proper delimitation, the two Mouzas mentioned in the notification could not be adjusted with the existing wards and, therefore, the appellant’s nomination paper was rightly rejected by respondent No. 3. This Court granted leave to consider that when the Returning Officer had no difficulty as to the identity of the appellant or his proposer and second, the defect as to number of ward, if any, ought to have been allowed to be remedied, as has been provided in proviso (ii) of sub-rule (3) of Rule 16 of the Union Parishad (Election) Rules, 1976.
4. Mr. Ahmed Sobhan, Counsel for the appellant, submitted that in view of the Gazette notification which mentioned that it was to take effect from the date of issue, that is, November 30, 1976, the adjustment of the Union concerned on rearranging the existing wards should have been made prior to holding the election, particularly when the appellant along with seventeen others applied for taking appropriate action in this regard. The failure of the respondent to give effect to the notification shows malafide and this, being unknown to the appellant, produced a wrong impression in his mind as well as others concerned that the wards of the Union had, according to the notification, been rearranged and old ward No. 1 had been re-numbered as ward No. 2. Secondly, if, due to such erroneous impression a wrong number was given in his nomination paper, the appellant should, in view of the provisions in proviso (ii) of rule 16(3), have been asked to remove the defect which, according to him, was not of a substantial nature. In rejecting the appellant’s nomination paper in violation of the aforesaid provision of law, the respondent No. 3’s action has become tainted with illegality. The rejection of his appeal by the respondent No. 2 is also wrong for two reasons, first, he did not assign any reason for allowing the appeal of Ahmed Miah whose nomination paper was rejected by the respondent No. 3, the Returning Officer, for a similar defect and secondly, he did not give any reason for rejecting his appeal.
5. As regards the connection of the learned Counsel that before fixing the date of election, re-adjustment of the constituency concerned should have been made in pursuance of the Gazette notification it appears that the difficulties attending such re-adjustments were many. This aspect was stressed by the respondent No.2 i9n his memo dated December, 22, 1976 written to the Deputy Commissioner.
“With reference to the notification mentioned above, I have the honour to point out the areas transferred from U.P. No. 10 of Ramgati and added with U.P. No. 12 cannot be adjudged in any ward of U.P. No. 12 at this stage i.e. in the midst of the Union Parishad Election and in the absence of proper delimitation.”
6. Indisputably, the authority concerned in this case, the Deputy Commissioner had the power to issue the notification dated November 30, 1976. Section 3 of the Local Government Ordinance, 1976 empowers the Deputy Commissioner to do the following:
“3. Declaration of union and alternation of limits thereof.- The Deputy Commissioner may, in the prescribed manner –
a) Divide the rural areas of a Police Station within his jurisdiction separately into a number of areas, and declare each such area to be a union;
b) Extend, curtail otherwise alter the limits of any such union; and
c) Declare that any such area shall, from a date to be specified, cease to be a Union.”
How the delimitation of any area induced in a union will be effected has been provided in section 20 of the Ordinance and also rule 4 of the Union Parishad (Election) Rules, 1976.
7. The procedure for delimitation as prescribed in section 3 is quite detailed and compliance with it involves considerable time. Once delimitation of a union has already been done, if any further alterations or modifications have to be made, the same procedure as laid down in this section may have to be followed. This would correspondingly require some time. We do not think that, having regard to the paucity of time between the date of the Gazette notification and the date of election, readjustment of the areas included in the union were possible. Consequently, in the absence of such readjustment the appellant’s nomination paper was defective which was, therefore, liable to rejection by the respondent No. 3.
8. Relying on the provisions of proviso (ii) to rule 16(3) of the Union Parishad (Election) Rules, 1976, the learned Counsel submitted that the wrong mentioning of the ward on the appellant’s nomination paper which was due to the aforesaid circumstances did not constitute a defect of a substantial nature, as mentioned in the aforesaid provisions. Further more, in view of the aforesaid provision; it is incumbent upon the Returning Office that he must not reject a nomination paper on the ground of any defect which is not of substantial nature, on the contrary he must allow such defect to be remedied forthwith. Without entering into the question whether the omission to mention the correct number of ware on the nomination paper was a defect of a substantial nature, it may be said that the appellate has nowhere showed that he prayed to the Returning Officer for giving him the opportunity to remedy the defect as occurred in his nomination paper. It is, no doubt, the duty of the Returning Officer to allow any defect which is not of a substantial nature to be remedied forthwith, but such duty is exercisable if the person concerned asked for the removal of such defect. When the appellant has not, it appears, made such prayer, there was no occasion for the Returning Officer to allow him, of his own motion, to remedy the defect. We do not, therefore, think that the Returning Officer has violated any provisions of law in rejecting the nomination paper. The dismissal of his appeal by respondent No. 2 cannot be said to be contrary to law, as he had, under the Rules, power to dismiss the appeal summarily.
For the reasons stated above, the appeal is dismissed with costs.
Source: 30 DLR (SC) (1978) 306