Advocate Md. Abdul Hamid Vs. Md. Fazlur Rahman, 50 DLR (AD) (1998) 80

Case No: Civil Petition for Leave to Appeal No. 121 of 1998

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. Fazlur Rahman Khan,Md. Sajjadul Hoque,,

Citation: 50 DLR (AD) (1998) 80

Case Year: 1998

Appellant: Advocate Md. Abdul Hamid

Respondent: Md. Fazlur Rahman

Subject: Election Matter,

Delivery Date: 1998-2-15

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Advocate Md. Abdul Hamid
……………….Petitioner
Vs.
Md. Fazlur Rahman
………………Respondent
 
Judgment
February 15, 1998.
 
The Representation of People Order, 1972
Art. 50, 51(2) & 58 (a)
Article 50 provides who are to be impleaded but does not prohibit any other person to be impleaded, considered necessary by the petitioner, for proper adjudication. So joining of Returning Officer and the Asst. Returning Officer in the election petition, though not contemplated under article 50, shall not render the election petition to be dismissed on ground of misjoinder…………………………(11)
 
Lawyers Involved:
Fazlur Rahman Khan, Advocate, (appeared with the leave of the court) instructed by Md. Aftab Hossain, Advocate-on-Record— For the Petitioner.
Md. Sajjadul Huq, Advocate-on-Record-For the Respondent.
 
Civil Petition for Leave to Appeal No. 121 of 1998.
(From the Judgment and order dated 19 November 1997 passed by the High Court Division in Civil Order No. 4167 of 1997).
 
JUDGMENT
 
Bimalendu Bikash Roy Choudhury J.
 
The Petitioner was declared elected as member of Parliament in the general election held on 12 June 1990 from No. 169, Kishoreganj-5 (which included Itna, Mitamon and Austogram police stations). After the final publication of the result in the official Gazette, the respondent who was a candidate with him presented an election petition with various allegations of corrupt and illegal practices and prayed for the following reliefs: 
 
“(ka) 1 no. protipokkho Jonab Advocate Md Abdul Hamid ke Jatiyo Shongshod Nirbachone 169 Kishoregonj-5 nirbachoni alaka hoite shongshod shodossho hishabe nirbachito ghoshona koria bigoto 16-6-96 eng tarikhe prokashito gazette e biggopti batil o beaini bolia ghoshona korite agga hoy ebong prarthike nirbachito ghoshna korite morji hoy.
(Kha) Soptm jatiyo nirbachone 169 Kishoregonj-5 nirbachoni elakar nirbachon samoyik bhabe batil koria punorvote grohon korar adesh dite agga hoy.
(ga) Ainoto: o nyaoto abednkari onno je shokol protikar paoar hokdar, tahar adesh dite morji hoy.” 
 
 
2. To the election petition the Returning Officer, Kishoreganj and the Assistant Returning Officers, Itna, Mitamoin and Austogram were joined as parties along with all the candidates. 
 
3. The said election petition has been registered as Divisional Election Tribunal Case No. 2 of 1997 and it is pending for disposal before the Divisional Election Tribunal, Dhaka. 
 
4. By an application dated 4 August 1997 the petitioner raised certain preliminary objections to the maintainability of the election petition and prayed for its dismissal under article 58(a) of the Representation of the People Order, 1972, hereinafter referred to as the Order. One of the grounds urged was that, the Returning Officer and the Assistant Returning Officers were impleaded in the election petition in contravention of the provisions of article 50 of the Order. The other ground was that, the reliefs claimed in the election petition were also not in accordance with article 51 (2) of the Order. 
 
5. The Election Tribunal did not find any merit in any of the grounds and overruled the objections of the petitioner by its order dated 5 October 1997. 
 
6. The petitioner then approached the High Court Division with an application under section 115 of the Code of Civil Procedure. A Division Bench of the said court summarily rejected it by its order dated 19 November 1997, being Civil Order No. 4167 of 1997. 
 
7. The petitioner is now seeking leave to appeal from the said order of the High Court Division. 
 
8. The learned Counsel for the petitioner first contends that the High Court Division has fallen into an error of law in holding that there has been no non-compliance with the requirements of the provisions of article 50 of the Order which is mandatory. He further contends that the reliefs claimed in the election petition are also not in conformity with the provisions of article 51(2) of the Order and that consequently the High Court Division has acted illegally in rejecting the revisional application. 
 
9. For appreciation of the points urged before us it is necessary to notice the relevant provisions of articles 50, 51(2) and 58(a). Article 50 provides as under:

“The petitioner shall join as respondents to his election petition—
(a) all contesting candidates; and
(b) any other candidate against whom any allegation, if any corrupt or illegal practice is made, and shall serve personally or by registered post on each such respondent a copy of his petition.”
Article 51(2) reads:
“A petitioner may claim as relief any of the following declarations, namely.
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected; or 
(c) that the election as a whole is void.” 
 
10. Then Article 58(a) says that the “Tribunal shall dismiss an election petition, if-

(a) the provisions of Article 50 or Article 51 have not been complied with.” 
 
11. Admittedly, all the candidates in the election have been impleaded in this case, it therefore, follows that all the necessary parties have been joined as respondents to the election petition, as required under article 50. But it appears that besides the necessary parties, as mentioned in the said Article, the Returning Officer and the Assistant Returning Officers have also been joined as parties in excess of the requirements of the said article. Learned Counsel has tried to argue that the joinder of these persons amounts to non-compliance with the provisions of article 50. According to him, article 50 should be read as though it says that the persons mentioned therein and no others shall be joined as respondent to the election petition. We are afraid, such a reading is not warranted in the face of the clear language of this article. Article 50 mentions the parties who are to be impleaded but does not prohibit impleading of parties who may be considered by the election petitioner to be proper parties. As such, when all the necessary parties have been joined to the election petition, the joining of the Returning Officer and the Assistant Returning Officers cannot by itself be a ground for dismissal of the election petition under article 58(a) of the Order. We thus find no substance in the contention of the learned Counsel for the petitioner on this point. 
 
12. With regard to the question whether there has been any non-compliance with the provisions of article 51(2) of the Order, the High Court Division is of the view that the requirements of the said article have been fully met. Regard being had to the reliefs prayed for in the election petition we find no reason to differ from the said view. 
 
For all these reasons we find no substance in this petition which is accordingly dismissed. 
 
Ed.