Case No: Civil Petition for Leave to Appeal No. 1099 of 2005
Judge: Mohammad Fazlul Karim ,
Court: Appellate Division ,,
Advocate: Mr. Anisul Huq,Mr. Abdul Quayum,,
Citation: 58 DLR (AD) (2006) 71
Case Year: 2006
Appellant: Abdul Kader
Respondent: Secretary, Election Commission and others
Subject: Election Matter,
Delivery Date: 2005-10-23
Syed JR Mudassir Husain CJ
Md. Fazlul Karim J
AK Chowdhury J
Secretary, Election Commission and others
October 23, 2005.
The Local Government (Union Parishads) Ordinance, 1983
The question of rescheduling of loan by a defaulter by the Bank does not find place in section 7(2)(g) of the Ordinance. Consequently rescheduling does not save a defaulter loanee from the mischief of the contemplated disability. If rescheduling would save a loanee from being a defaulter, the legislature would have certainly made the provision for it in the section itself……………..(6)
Cases Referred To:
Nur Mohammad vs. Badruddoza and another 42 DLR (AD) 116; AFM Shah Alam vs. Mujibul Huq 41 DLR (AD) 68; Mostafa Hossain vs. SM Faruque 40 DLR (AD) 10; Sheikh Abdus Sabur vs. Returning Officer 41 DLR (AD) 30.
Anisul Huq, Advocate, instructed by Sufia Khatun, Advocate-on-Record—For the Petitioner.
Abdul Quayum, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record—For Respondent No. 4.
Not represented—For Respondent Nos. 1-3.
Civil Petition for Leave to Appeal No. 1099 of 2005.
(From the judgment and order dated 25th July 2005 passed by the High Court Division in Writ Petition No. 480 of 2003).
Md. Fazlul Karim J.
1. The petitioner seeks leave to appeal against the judgment and order dated 25-7-2005 passed by the High Court Division discharging the Rule issued against declaring the petitioner a defaulter illegally cancelling his nomination paper by the respondent No. 2 and further, declaring his election as Chairman of Kuti Union Parishad void.
2. The petitioner filed the writ petition stating, inter alia, that he was a former Chairman of Kuti Union Parishad and he, with a view to contesting the office of the Chairman in the election, filed nomination paper on 1-1-2003. The respondent No. 3, Returning Officer, in consideration of an objection submitted by one Harunur Rashid Chowdhury of village Leashiara of Ward No. 5 of the concerned union, found that the petitioner was a loan-defaulter with Agrani Bank, Kasba Branch and rejected his nomination paper on the ground of his being disqualified under section 7(2) (g) of the Local Government (Union Parishads) Ordinances, 1983.
3. The petitioner being aggrieved by the said order of rejection of the Returning Officer preferred an appeal before the respondent No. 2, Thana Nirbahi Officer, within time and the Thana Nirbahi Officer as an appellate authority by his order dated 5-1-2003 affirmed the order dated 1-1-2003 of the Returning Officer holding him disqualified as a loan-defaulter with the said Bank.
4. Upon a split judgment the matter was referred to the learned third Judge who was pleased to discharge the Rule. The petitioner, being aggrieved, moved this Court.
5. Mr. Anisul Huq, the learned Advocate appearing for the petitioner, submitted that the respondent Nos. 2 and 3 illegally rejected the nomination paper of the petitioner as the petitioner ceased to be a defaulter on the date when down payment was accepted and the bank had assured time for six months more to repay his loan. The learned Advocate further submitted that the Agrani Bank having rescheduled his loan with effect from 18-12-2002 the petitioner ceased to be a defaulter on 18-12-2002 and his nomination paper has been unlawfully cancelled. The learned Advocate lastly submitted that both the Returning Officer and the Thana Nirbahi Officer, Kasba erred in interpreting section 7(2)(g) of the Local Government (Union Parishads) Ordinance, 1983, and thereby acted illegally in cancelling the nomination paper of the petitioner.
6. Section 7(2)(g) of the Local Government (Union Parishads) Ordinance reads as under:
Section 7.- Qualifications and disqualifications of Chairman and Members of Union Parishads—
(2) A person shall be disqualified for election as, or for being, a Chairman or a Member if—
(g) he has defaulted in repaying any loan taken by him from any specified bank within the time allowed by the bank therefore;
6. From the above, it is clear that on the date of submission of nomination paper the petitioner was admittedly a defaulter as contemplated by law. The question of rescheduling of loan of a defaulter by the Bank did not find place in the section and the legislature has not contemplated the said rescheduling so as to save the said admitted defaulter from the mischief of being defaulter. Had it been the case, that the rescheduling would save a loanee of being a defaulter the legislature would have made the provision for the same in the section itself. The section does not provide for any exception by any proviso thereto in the section. We are to interpret the law as it stands giving the section its natural and ordinary meaning unless it admits of any other meaning.
7. In the case of Nur Mohammad vs Badruddoza and another reported in 42 DLR (AD) 116 it has been held that:
"Such default in the payment of any loan has been made a disqualification to be elected or to be nominated to the election of a Chairman of Union Parishad. The reason is that the legislature wanted to eliminate such person from holding a public office because such person, who was a defaulter would not be considered suitable for performing the public duty. This was considered in two decisions of this Court in 41 DLR (AD) 68 and 40 DLR (AD) 10. It was further elaborated in Sheikh Abdus Sabur vs Returning Officer 41 DLR (AD) 30. It was observed:
"The main object of the 'disqualification' provision appears to be the furtherance of economic and financial interest of the State and though it has not been expressly stated in the statute it is clear from the nature of duties and responsibilities of the persons constituting these local bodies. It is a common knowledge that for non-payment of loans taken from State-owned banks, the national economy has been badly affected. One of the functions of Union Parishad is to help collection of Government dues, rents and taxes. Besides, members of the Union Parishad are directly involved in financial transaction in the course of their official duties and running the affairs of the Union Parishad. The fact that these persons are financially handicapped by being 'defaulters' will embarrass them in the discharge of their duties."
8. In view of the above, we do not find any substance in the submissions of the learned Advocate for the petitioner.
The petition is dismissed