Abdul Halim Gazi and others Vs. Afzal Hossain and others, 57 DLR (AD) (2005) 149

Case No: Civil Appeal Nos. 229 and 230 of 2004

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Mr. T. H. Khan,Mr. Abdur Razzaque Khan,,

Citation: 57 DLR (AD) (2005) 149

Case Year: 2005

Appellant: Abdul Halim Gazi and others

Respondent: Afzal Hossain and others

Subject: Constitutional Law, Election Matter,

Delivery Date: 2005-3-15

Supreme Court
Appellate Division
(Civil)
 
Present
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
 
Abdul Halim Gazi
………........Appellant (In Civil Appeal No. 229 of 2004)
Government of Bangladesh through the Secretary, Ministry of Local Government, Engineering and Rural Development and Others
……….......Appellants (In Civil Appeal No. 230 of 2004)
Vs
Afzal Hossain and others
....................Respondents (In both the cases)
 
Judgment
March 15, 2005
 
The Constitution of Bangladesh, 1972,
Article 102 
Whether disputed question of fact as to the question of elected candidate to be a bank defaulter can be decided in a writ petition to set aside the election and whether such a writ petition is maintainable. Disputed question of fact cannot be decided in writ petition specially when such question is pending before the Appellate Division for decision. When there is no question of corum non judice or malice in law no writ petition is maintainable………………….(15, 19 and 26). 
 
Cases Referred To-
A.K.M. Mayeedul Islam Vs Bangladesh Election Commission and others, 48 DLR (AD) 208; Farid Mia Vs. Amjad Ali (Md.) alias Mazu Mia and others, 42 DLR (AD) 13; Mahbubur Rahman Vs. Divisional Election Tribunal and others, 6 BLC (AD) 45; A.F.M. Rashid Vs. the Election Commission and others, 11 BLD (AD) 189; A.F.M. Shah Alam Vs. Mujibul Haq and others, 41 DLR (AD) 68; Mahbubur Rahman Vs Divisional Election Tribunal and others, 6 BLC (AD) 45; Mahmudul Haque (Md) vs. Md. Hedayethullah and others, 48 DLR (AD) 128.
 
Lawyers Involved:
Rafique-Ul-Huq, Senior Advocate (Faheemul Huq, Advocate, with him) instructed by Md. Nowab Ali, Advocate-on-Record-For the Appellant (In Civil Appeal No. 229 of 2004)
Abdur Razaque Khan, Additional Attorney General, instructed by Md. Ahsanullah
Patwary, Advocate-on-Record-For the Appellant (In Civil Appeal No. 230 of 2004)
T. H. Khan, Senior Advocate (M. Moksadul Islam, Advocate appeared with the leave of the Court, with him) instructed by Md. Aftab Hossain, Advocate-on-Record-For Respondent No. 1 (In both the cases)
Not represented- Respondent Nos. 2-8 (In Civil Appeal No. 229 of 2004)
Not Represented-Respondent No.2 (In Civil Appeal No. 230 of 2004)
 
Civil Appeal Nos.229 and 230 of 2004
(From the judgment and order dated 01.08.2004 passed by the High Court Division in Writ Petition No. 2677 of 2004).
 
JUDGMENT
 
Amirul Kabir Chowdhury J.
 
1. Civil Appeal No. 229 of 2004 at the instance of writ respon­dent No. 7 Abdul Halim Gazi is directed against the judgment and order dated 1st August 2004 passed in Writ Petition No. 2004 making the rule absolute declaring that the election of the Jhalakathi Pouroshova has been vitiated as a whole and consequently canceling the Gazette notification declaring the appellant as elected to the aforesaid post and further directing the writ respondent Nos. 1 to 6 to hold a fresh election excluding the appel­lant as he was a bank defaulter and giving a further direction to the writ respondent No. 4 to initiate proceeding under Sections 199 and 200 of the Penal Code against the appellant along with other persons responsible for allowing the appellant to participate in the election.
 
2.  Government of Bangladesh and Deputy Commissioner Jhalakathi filed Civil Appeal No. 230 of 2004 arising out of the same judg­ment and order and as such both the appeals are disposed of by this single judgment.
 
3. The facts, in short, are that the respondent No.1 filed a writ petition against the election result dated 10.05.2004 declaring the writ respondent No.7 appellant Abdul Halim Gazi as the elected Chairman and the publication of the gazette notification and administration of oath to the said Adbul Halim Gazi as the elected Chairman     of  the Jhalakathi Pourashava as illegal.
 
4. Writ-respondent No.7 i.e. the appellant and the writ petitioner along with 3 others contest­ed the election for the post of Chairman of Jhalakathi Pourashava held on 09.05.2004. It has further been stated that respondent No.7 (appellant) is a Bank loan defaulter but con­cealing the fact, he participated in the said election in violation of section 10(2) (g) of the Pourashava Ordinance, 1977, shortly the Ordinance; many cases against writ-respon­dent No.7 initiated by different banks are pending before different courts of the country. It has been further stated that writ-respondent No. 7 along with his two brothers, are the owners of M/s. Gazi Enterprise and M/s. Gazi Salt Industries, who took loan of Tk.11 crores from Jhalakathi branch of Janata Bank and did not pay the loan, consequently the Bank filed Artha Rin Adalat Case Nos. 3 of 2002 and 2 of 2004 on 26.02.2002. Against the decision of the Artha Rin Adalat, the writ-respondent No.7 along with others filed Writ Petition Nos.4675 of 2002 and 4676 of 2002 before the High Court Division but the rules were discharged. Writ-respondent No.7 also filed Writ Petition Nos.4237 of 2001 and 4238 of 2001 before the High Court Division against the decision of the Artha Rin Adalat Case No. 365 of 2003 before Artha Rin Adalat, Court No.1, Dhaka for realization of Tk.5 crores against Weaver Bird Sweater Limited, of which writ-respondent No.7 is a director and the case is still pending before the said Court and that at the time of submission of the nom­ination paper, the writ-petitioner verbally raised objection against the candidature of writ-respondent No.7 but the writ-respondent No.7 managed the local authority to get his nomination paper accepted and that the matter was brought to the notice of the Election Commission but to no effect. The election was held on 09.05.2004 in which the writ-respon­dent No.7 was elected securing 8,454 votes and the writ-petitioner obtained 5,828 votes. Writ-petitioner on 10.05.2004 made appeal to the Chief Election Commissioner and also to the Secretary, Election Commission but the appeals were not considered by the Election Commission.
 
5. Writ-respondent No.7 appeared in the rule and contested the same by filing affidavit-in-opposition wherein he denied the statements made in writ petition and also denied that he is a bank loan defaulter and asserted that he participated in the election as per law. He fur­ther stated that against the decision of the High Court Division in those writ petitions, he moved the Appellate Division of the Supreme Court in Civil Miscellaneous Petition for Leave to Appeal Nos. 247 of 2004, 248 of 2004, 249 of 2004 and 250 of 2004 wherein the Appellate division of the Supreme Court stayed the judgments and orders passed by the High Court Division in those writ petitions arising from decisions of such the question of the being bank a loan defaulter does not arise. He further stated that before issuance of the rule by this Court on 24.05.2004, the result of the election has been published in the official gazette on 15.05.2004 and as such the High Court Division has no jurisdiction to hear the writ petition on merit as it is the consistent decision of the Supreme Court of Bangladesh that if the result of the election is published in the official gazette, election dispute should be thrashed out before the Election Tribunal. He further stated that the order of stay granted by the High Court Division at the time of issuance of the rule was stayed by the Appellate Division in Civil Petition No. 733 of 2004 and as such there was absolutely no matter pending before the High Court Division and the order of stay granted by the Appellate Division having been granted before disposal of the rule by the High Court Division, it (High Court Division) under spe­cial original jurisdiction exceeded its jurisdic­tion in settling the election dispute which squarely falls within the jurisdiction of Election Tribunal.
 
6. The High Court Division while making the rule absolute without any order as to costs passed the aforesaid orders and directions as mentioned above. Hence are these appeals.
 
7. Leave was granted to consider the submis­sion of Mr. Rafique-Ul Huq, learned Counsel representing the appellants that once the elec­tion process has been started, moreso, when in the instant case election result has been pub­lished in the official gazette the High Cough Division has no jurisdiction under Article 102 of the Constitution to entertain any matter relating to election unless there is corum-non-judice or malice in law as decided by the Court in the case of A.F.M. Shah Alam reported in 41 DLR (AD) 68 inasmuch as in view of specific provision of law providing specific relief, resort to Article 102 of the con­stitution is not maintainable and that when the question of loan default was pending in the Court of law such question cannot be decided by the returning officer unless it was finally decided by the Court of law.
 
8. In support of the appeals Mr. Rafique-Ul-Huq, learned Counsel reiterates his earlier submissions and contends further that whether the appellant is a "loan defaulter" or not is subject to proof on taking proper evi­dence and that the same being a contentious subject of dispute between the parties the High Court Division committed error in mak­ing the rule absolute disregarding of existence of such a disputed fact. Placing the writ peti­tion the learned Counsel contends that there is no allegation of corum-non-judice or malice in law nor infact there in any material of the same and as such after the election result being announced and published in the official gazette on 12.05.2004 the High Court Division committed error in not holding that the writ petition itself was not maintainable.
 
9. The learned Counsel then submits that the direction give to the respondent No. 5 by the High Court Division to initiate a proceeding against the appellant under Sections 199 and 200 of the Penal Code is not sustainable being based on no foundation. He lastly submits that admittedly election process  started in the instant case and the election itself took place and result of the election also being published the interference by the High Court Division in its writ jurisdiction was uncalled for and hence the impugned judgment is liable to be set aside.
 
10. Mr.T.H. Khan, learned Counsel appearing for the respondent No. 1 submits that the process of election from the publication of notification for election to the publication of result having been concluded and the writ petition being filed thereafter the petition is immune of mischief of the process of election and as such the same is maintainable.
 
11. He further submits that filing of a suit by the bank concerned against the appellant itself manifests that the appellant is defaulter of bank loan and in that view of the matter this is not disputed question of fact, need not be gone into to be determined in the writ petition and the Returning Officer passed order accepting the nomination paper inspite of such patent disqualification of the appellant and thus exercised jurisdiction illegally and hence the said order is corum-non-judice and also it was maintainable and therefore the High Court Division did not commit any error whatsoever in making the rule absolute.
 
12. We have considered the submissions made at the Bar and perused the materials on record. There is no denial that the process of election of Jhalakati Pourashava started and it has also been concluded with publication of the elec­tion result on 15.05.2005 in the official gazette. The bone of contention between the parties in that the appellant being a bank loan defaultes stood disqualified for election as chairman under section 10(2) (g) of the Pourashava Ordinance, 1977. The relevant position of the aforesaid provision of law is quoted below:
 
"10. Qualifications and Disqualifications of Chairman and commissioners of Pourashava.- …………………………………..
(2) A person shall be disqualified for election as, or for being, a chairman or an elected com­missioner, or for nomination as a woman commissioner, if-........................................
 
13. The persistent claim of the respondent No.1 is that the appellant having defaulted in repaying the loan taken by him from the Janata Bank, Jhalakati Branch, Barisal comes within the mischief of the aforesaid provision of law as to his disqualification to seek the election. Therefore, the declaration of the appellant as elected chairman of the Pourashava is without jurisdiction. The appellant denied the aforesaid assertion of the respon­dent No.1 in his affidavit-in-opposition and the matter is said to be pending in the Court of law. Whether at this stage he may be declared as bank loan defaulter is a question to be decided after recording the evidence of par­ties. In any view of the matter, in view of the contentious submissions of the parties we are led to hold that assertion is, at least, a disput­ed question of fact. It has been settled long ago that disputed questions of fact are outside the jurisdiction of disposal of an application under Article 102 of the Constitution. It is also found that the matter is at least pending before the Appellate Division.
 
14. In this connection the case of A.K.M. Mayeedul Islam Vs. Bangladesh Election Commission and others reported in 48 DLR (AD) 208 may be referred to where it is held that The Returning Officer, having taken the view that because of the pendency of appeals respondent No.3 will not be disqualified from contesting the ensuing election, it cannot be said that he had no authority to so decide and that his decision suffers from malice in law.
 
15. It appears further that this Division in the case of Farid Mia Vs. Amjad Ali (Md.) alias Mazu Mia and  others reported in 42 DLR (AD) 13 observed:-
 
“7. As regards the first ground, it may be stated that if the purpose of the writ peti­tion was only to challenge the election of the appellant on the alleged ground of his being a defaulter then we would have felt no hesitation to declare at once that the writ petition was not maintainable."
 
16. Similar views have been expressed in the case of Mahbubur Rahman Vs. Divisional Election Tribunal and others reported in 6 BLC (AD) 45.
 
17.  In consideration of the facts and law on the point we find that the High Court Division approached the matter from an erroneous view making unnecessary lengthy discourse regarding the meaning of 'election', 'disquali­fication' and jurisdiction of the High Court Division and thus did a futile exercise. The High Court Division held:-
 
"If we consider the statements of writ petition together that of affidavit-in-opposition along with the annexure, we are satisfied that respondent No.7 still running with bank loan. Since respondent No. 7 failed to repay the loan and the bank having filed suit for realization of loan, respondent No.7 failed to repay the loan and the bank having filed suit for realization of loan, respondent No.7 squarely fallen within the mischief of Section 10(2)(g) of the ordinance. It matters little whether the proceedings are not reached its finality and now pending before the Appellate Division, but since we find respondent No.7 being a default­er on the date of filing nomination papers, he was disqualified to participate in the process of election. Disqualification requires no evidence to settle. The fact that bank instituted suits for realization of loan money is enough to hold respondent No.7 is a bank loan defaulter and since the suits have been filed before filing of the nomination paper and still pending as such respon­dent No.7 cannot come out of the mis­chief of Section 10(2) (g) of the ordi­nance."
 
18.  In view of the facts and position of law mentioned by us we are of the view that the High Court Division committed error of law in holding that the writ respondent No.7 (appellant) is a bank defaulter. We are rather of the view that the matter is pending before the Appellate Division and so it has not reached its finality and therefore the decision arrived at by the High Court Division and so it has not reached its finality and therefore the decision arrived at by the High Court Division declaring the Appellant as Bank Loan default­er, at this stage, is premature and erroneous.
 
19. On the question of maintainability of the writ petition, we are sorry to observe that inspite of series of decisions by apex Court of this country the High Court Division rather lent a deaf ear. In the absence of any materials that the impugned order of the Returning offi­cer was corum-non-judice or bore any malice in law, moreso, in the instant case there being on averment even to the effect, the High Court Division observed:-
 
"Now the question raised by Mr. Khondker that whether this court has jurisdiction to settle the dispute when the gazette has been published. It may be said as Mr. Khondker submits that since the elective objection over and since there is no effective objection against the candidature or respondent No.7, so his election should be challenged before the Election Tribunal. Here we may refer to the nomination paper submitted by respondent No.7. We find a declaration is to be made to the effect that the candi­date is not a disqualified person respon­dent No.7 made this declaration. We have already found from the annexures appended with the writ petition together with the statements made by respondent No.7 in his affidavit-in-opposition that respondent No.7 is a bank loan defaulter. A disqualified person knows very well about this disqualification. Despite knowing so, respondent No.7 made the aforesaid declaration. Law demands the petitioner must speaks truth but in the instant case, we find to perpetuate fraud and avoid law, respondent No. 7 made the said declaration which is, in our opin­ion, is a fraud practicing on the statute and the fraud has been detected discov­ered and established. We find respondent No.7 practiced fraud upon the statute in order to participate in the election and respondent No.7 did it consciously, not unconsciously. It lawfully presumed respondent No.7 did if having knowledge of his bank loan defaulter. We find from his own statement made in affidavit-in-opposition that against the judgment and order of the Artha Rin Adalat, he moved this Court in writ jurisdiction and there­after to Appellate Division which speaks his absolute knowledge of bank loan default and in filing the nomination papers without disclosing the truth about himself, respondent No.7 practiced fraud upon the statute and thus this court had jurisdiction to find out whether respon­dent No.7 did it or not, consciously. To find out whether in participating election a fraud has been practiced on the statute. Election Tribunal is not the proper forum as this court, under its constitutional obli­gations, has power to interpret law to find out whether fraud has been practiced on statute. From the discussions made here­in before we find respondent no.7 con­sciously declared that he was not a dis­qualified candidate and is guilty of mak­ing false statement to avoid the statute. Thus we hold respondent No.7 practiced fraud upon the statute and this court has jurisdiction to find whether respondent No. 7 has no legal foundation to participate in the election and since he partici­pated, election vitiated as a whole. So, the submissions of Khondker that the dis­pute is to be resolved before Election Tribunal no taking evidence cuts little ice."
 
20. On the question as to maintainability of the writ petition Mr.T.H. Khan strenuously submits that the Returning Officer passed an order without jurisdiction. Moreso, in view of filing of suit by the bank against the appellant it cannot be denied that he is a-bank defaulter and in such view of the matter the Returning Officer accepted his nomination paper and thus exercised the jurisdiction without author­ity and hence the order being courm-non-judice the writ petition was maintainable.
 
21. In support of the submission he refers to the decision in the case of A.F.M. Rashid Vs. the Election Commission and others reported in 11 BLD (AD) 189 wherein in has been held:,
 
"13. An aggrieved candidate may bid his time and after the publication of the result of the election in the Official Gazette can file an election petition. If he has got a clear case, that can be decided at the macro level on the interpretation of relevant law on admitted facts, not clut­tered by micro-questions of disputed nature, then for an efficacious of expeditious remedy he may invoke the jurisdic­tion of the High Court Division under Article 102 of the Constitution."
 
22. Taking clue from the above decision Mr.T.H. Khan emphasises that there being a clear case that the appellant is a bank defaulter still the Returning Officer passing such an illegal order, the respondent was not required to wait for filing petition to the Tribunal and thus rightly invoked the writ jurisdiction of the High Court Division.
 
23.  From the decision referred to, it appears that in order to bring a case within the scope of maintainability in the writ jurisdiction in connection with an election it decided at the micro-level on the interpretation of law on admitted facts.  But, as we have already noticed that, the claim of the respondent No.1 that the appellant is a bank loan defaulter has been persistently denied by the appellant and the matter is pending before the superior Courts and thus we do not find that there exits such a clear case capable to be decided at the micro-level on the interpretation of the rele­vant law. In this connection paragraph 4 of the affidavit-in-opposition filed by the appellant before the High Court Division may be referred to wherein he stated-
 
"This deponent is not a bank loan defaulter and did not participate the Pourashava election in violation of Section 10(2) (g) of the Pourashava Ordinance, 1977," So on the face of it we do not find that there is existence of any admitted fact giving rise to disqualifica­tion of the appellant for which the Returning Officer, in the version of Mr. T.H. Khan, passed an illegal order without jurisdiction. The contention of Mr. Khan therefore has no leg to stand.
 
24. Mr. Rafique-Ul-Huq referring to the deci­sion in the case of A.F.M. Shah Alam Vs. Mujibul Haq and others in 41 DLR (AD) 68 submits that the jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked except on the very limited ground of total absence of jurisdiction i.e. corum-non-judice or malice in law. In the aforesaid decision in paragraph 49 it has been observed:-
 
"(3) The jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked except on the very limited ground of total absence of jurisdiction (coram-non-judice) or malice in law to chal­lenge any step in the process of election including an order passed by the Election Commission under Rule 70 because:
..............................................
(b) all election disputes must wait pending completion of the election and be taken to the special forum created under the Election Law itself for their resolution.
.............................................."
 
25. There is also no denial that under Section 27 of the Pourashava Ordinance, provision has been made for filing election petition challenging the election of any candidate. The decisions in the cases of Mahbubur Rahman Vs Divisional Election Tribunal and others in 6 BLC (AD) 45 and Mahmudul Haque (Md) vs. Md. Hedayethullah and others in 48 DLR (AD) 128 reiterate the aforesaid principle of law. Though Mr.T.H. Khan tried to make out a case that the order passed by the Returning officer is corum-non-judice being passed without jurisdiction, but we find that the Returning Officer has been authorised by the statute to dispose of the objection raised regarding the nomination papers and in the instant case he has exercised such jurisdiction Even if the submission of Mr.T.H. Khan is accepted for argument's sake, at best it may be regarded as illegal exercise but it cannot be said that he exercised it without jurisdiction and as such we do not see eye to eye to such submission of Mr.T.H. Khan. Moreover, in the writ petition itself there is no such griev­ance of corum-non-judice or malice in law made by the respondent No.7 We are therefore of the view that there is no question of corum-non-judice or malice in law as raised now before us or behalf of the respondent No.7 and so the writ petition is not maintainable.
 
26. It appears that the High Court Division not only made the rule absolute but on the basis of erroneous findings cancelled the election and also directed the writ respondent No.4 to ini­tiate proceeding under Sections 199 and 200 of the Penal Code against the appellant on the basis of unfounded observations which cannot sustain in the eye of law.
 
27. In view-of the discussion made above we find substance in these appeals. In the result both the appeals are allowed without any order as to costs. The impugned judgment and order complained of are set aside.
 
Ed.