Advocate Taimur Alam Khondker and another Vs. Bangladesh and others 2017 (1) LNJ 130

Case No: Writ Petition No. 12774 of 2016

Judge: Sheikh Hassan Arif. J.

Court: High Court Division,

Advocate: Taimur Alam Khandker, Md. Mokleshur Rahman,

Citation: 2017 (1) LNJ 130

Case Year: 2016

Appellant: Advocate Taimur Alam Khondker and another

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-03-14

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Quamrul Islam Siddique, J

And

Shiekh Hassan Arif, J

Judgment on

11.12.2016

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Advocate Taimur Alam Khondker and another

. . . Petitioners

-VERSUS-

Bangladesh and others

. . . Respondents

Constitution of Bangladesh, 1972

Article 102

It appears from materials on record that there is no such specific Rules for holding election of BNFD thereby providing for any qualifications or disqualifications for participation in the said election. The only qualification therefore being that any valid voter can be a valid candidate. It is admitted position that the petitioners including the other contenders of the said election were declared valid voters through publication of voter list dated 25.09.2016. It is not the case of the respondents that the petitioners became disqualified to be the voters in the said election. Therefore, this Court has failed to realize as to how and under what criteria the Election Commission or the Election Appeal Board decided as to who should be the valid candidates for the said election. The inquiry reports, as annexed to the affidavit-in-opposition as Annexures-4 and 5, also reveal that some of the allegations have been proved against the entire executive committee. Therefore, it is apparent from record that even the inquiry officers did not single-out the petitioners in respect of any such allegations. Not only that, the allegations regarding defalcation or corruption have not been proved through inquires by both the Inquiry Officers unanimously in that the Officers reached contrary findings. Since there is no such election Rules disqualifying a particular candidate for a particular offence or allegations, we are of the view that, the Election Appeal Commission as well as the Election Board have acted without any reasonable basis and without guidance of any principle of law which is further more evident when it is apparent that only the petitioners have been picked up finally by the Election Appeal Board for cancellation of nominations when the allegations were in fact against the entire members of the outgoing executive committee. Learned Deputy Attorney General has also not made any sort of submissions successfully as to why the petitioners have been picked-up by the Election Appeal Board when the allegations were against all the members of the outgoing executive committee. This being so, we have no option but to hold that the Election Commission and the Election Appeal Board in fact acted in a very arbitrary manner and without any reasonable basis. It is apparent before this Court that the Election Commission as well as the Election Appeal Board have not acted lawfully and as such the impugned orders passed by them should be set aside by this Court. For effective disposal of the Rule, the respondent Election-Commission and other respondents are directed to declare the petitioners’ nominations as valid nominations for the BNFD Election-2016 and act accordingly in accordance with law.  . . . (7 to 9 and 11)

Mr. Taimur Alam Khondaker with

Ms. Mar-e-um Khondaker, Advocates

…. For the petitioner

Mr. Md. Mokleshur Rahman, DAG with

Ms. Farida Yeasmin, AAG

…. For the Respondent No.2.

JUDGMENT

Sheikh Hassan Arif, J Rule Nisi was issued calling upon the respondents to show cause as to why the order dated 03.10.2016 passed by the respondents Nos. 3 & 4 in Appeal No. 1 & Appeal No.4 upholding the declaration of candidature of the petitioners as illegal “A®~hd” (Annexures-N & N-1) for the post of President (petitioner No.1) and Treasurer (petitioner No.2) for Election-2016 of the Bangladesh National Federation of the Deaf, passed by the concerned Election Commission (respondent Nos. 5-7) vide their Memo No. 41.01.0000. 046.99.001.16-281 dated 02.10.2016 (Annexure-M) on the basis of the impugned letter vide No. h¡Shp-e¢e/954/16/16-255 (09) dated 29.09.2016, issued under the signature of respondent No.8, should not be declared to be without lawful authority and is of no legal effect.

Short Background Facts:

2.            Short facts, relevant for the disposal of the Rule, are that, the petitioner Nos. 1 and 2, being citizens of this country, are life members of the Bangladesh National Federation of Deaf (“BNFD”) and they were elected as the president and Treasury of BNFD respectively without any contest for the tenure of 2013-2016. That petitioner No. 1 is a political figure and President of Bangladesh Nationalist Party (BNP), Narayangonj District, and Vice Chairman of Bangladesh National Society for the Blinds in addition to being an Advocate of this Court. That the petitioner No. 2 is the elected President of Bogra Deaf and Dumb Association and is the Donor Member of Bogra Deaf and Dumb School. BNFD is a social welfare voluntary organization registered under the Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961 and is run under a constitution of the organization as approved by the Directorate of the Social Services Department of the Government of Bangladesh, and it looks after the welfare of the deaf people in the country. It is stated that, as per the relevant provisions of the constitution of the BNFD, the Federation, at the fag-end of the previous tenure, wanted to hold AGM for the purpose of taking steps as regards holding of election to elect its next executive committee for three years’ period. However, the said AGM was stopped by the Director General of Social Service Department vide letter dated 20.12.2015 on the ground of some complaints lodged by one Amanullah and others.  Being aggrieved by such stoppage, the petitioner No.1, on behalf of the BNFD, filed Writ Petition No. 898 of 2016 which ended up with the judgment dated 06.06.2016 passed by a division bench of this Court allowing the existing Executive Committee to function only for the purpose of holding election and further allowing the said executive committee to do routine works for the purpose of such election. That, being aggrieved by such judgment of the High Court Division, the said Md. Amanullah filed Civil Miscellaneous Petition No. 836 of 2016 before the Appellate Division of this Court, whereupon, the Appellate Division, vide order dated 17.07.2016, directed the Social Service Directorate to constitute three member election committee for holding election as well as to appoint an Administrator for running the affairs of the Federation. In the meantime, the petitioner No. 1 filed another Writ Petition, being Writ Petition No. 3714 of 2016, seeking direction upon the Social Service Directorate to constitute Election Commission for holding the election of the executive committee of the BNFD for the tenure 2016-2019 and, accordingly, obtained a Rule and ad-interim order of direction from the High Court Division directing the concerned respondents to constitute such Election Commission. However, since the Social Service Directorate had, in the meantime, constituted Election Commission and appointed an Administrator for running the affairs of the Federation, the Rule issued in the said writ petition became infructuous.

3.            Thus, the Administrator and the Election Commission, as appointed pursuant to the direction of the Appellate Division, having started functioning, and the Election Commission having published election schedule and voter list, the petitioners, along with other aspiring candidates, filed nomination papers for the post of President and Treasurer respectively. Thereupon, the Election Commission commenced scrutinizing the nomination papers. In the meantime, the Administrator sent a letter to the Election Commission enclosing therewith two investigation reports and asked the Election Commission to take into cognizance of the said reports submitted against the outgoing executive committee members including the petitioners as it appeared to him that the said allegations proved through such inquiry were against the interest of the Federation touching the moral turpitude of the members of the said committee. Thereupon, by particularly referring to the said memo dated 29.09.2016 sent by the Administrator, the Election Commission cancelled nominations of eleven candidates including the petitioners who were the members of the said outgoing executive committee vide impugned memo dated 02.10.2016. Being aggrieved by such memo or cancellation of the nominations, the petitioners, along with other aggrieved candidates, preferred appeals before the Appeal Board. Thereupon, the Election Appeal Board, though allowed the appeals of other candidates, dismissed the Appeal Nos. 1 and 4 of  the petitioners vide impugned order dated 03.10.2016. Thereafter, it is stated, the election was held without participation of the petitioners as candidates in the said election, and, accordingly, some candidates, who were allowed to participate, were declared elected. Being aggrieved by such cancellation of nominations by the respondent Election Commission as well as the Election Appeal Board, the petitioners moved this Court and obtained the aforesaid Rule.

4.            The Rule is opposed by the Directorate of Social Services (respondent No.2) by filing an affidavit-in-opposition contending, inter alia, that the inquiry reports, as submitted by the concerned officials of the Directorate on the basis of the complaints filed by some members of the BNFD, having found the petitioners guilty of offences touching moral turpitudes as well as offences against the Federation, the Election Commission as well as the Election Appeal Board lawfully cancelled the nomination of the petitioners and as such there is no allegedly in such actions of the respondents.   

Submissions:

5.            Mr. Taimur Alam Khondaker, learned advocate appearing for himself (petitioner No.1) and for petitioner No.2, submits that, evidently there is a long history of political rivalry between the petitioner No.1 and the political party in power now and as such the petitioner No.1 and his associates have time and again become victim of such political rivalry, though, according to him, BNFD is a totally non-political social welfare organization. Learned advocate submits that, whenever the petitioner No.1 took elected office of BNFD in previous time, he always had to face such venoms of political rivalry at the instance of his political opponents locally and nationally and he had to seek refuge of this Court time and again for his protection. Drawing this Court’s attention to the concerned voter list (Annexure-J), election schedule as well as the amended election schedule (Annexures-K and K1), learned advocate submits that, since the petitioners were valid voters along with other candidates and no allegation for disqualification of the petitioner in the election having been proved either by inquiry or by otherwise, cancellation of their nominations at the instance of the Administrator is evidently without lawful authority and as such this Court should set aside the same. Further referring to a decision of this Court concerning the earlier election of the BNFD (Annexure-P), learned advocate submits that, in spite of specific direction of this Court to the Administrator in that he should not interfere into the election of the BNDF, the Administrator concerned has issued the said memo dated 29.09.2016 (Annexure-L) apparently asking the Election Commission to debar the petitioners and others from participating in the election. This being so, according to him, the Election Commission as well as the Appellate Board having not acted independently, the impugned cancellation orders by the Election Commission as well as the Appellate Board should be knocked down by this Court. Learned advocate further argues that, though the allegations were labelled against the petitioners and some other members of the outgoing executive committee, only the petitioners have been picked-up by the Election Commission for cancellation of the nominations though the inquiry reports have not singled-out the petitioners in so far as the allegations therein are concerned. Thus, according to him, the petitioners have become victim of pick and choose policy because of the political identity and background of the petitioner No.1. Further referring to the concerned inquiry reports as annexed to the affidavit-in-opposition as Annexures-4 and 5, learned advocate submits that, even the Inquiry Officers did not find any allegations of defalcation or corruption having been proved against the petitioners. This being so, according to him, the impugned cancellation of nomination of the petitioners are nothing but colorable exercise of power for collateral purpose and as such should be knocked down by this Court.

6.            As against above submissions, learned Deputy Attorney General representing respondent No. 2, has drawn this Court’s attention to the said Inquiry Reports (Annexures-4 and 5 to the affidavit-in-opposition) and then submits that some allegations having been proved through both the inquiries, the petitioners do not have any case before this Court inasmuch as that with the said allegations having been proved, the petitioners became disqualified to contest the said election. When confronted with the question of this Court as to why the petitioners only have been picked-up for cancellation of nominations, learned DAG submits that the Inquiry Reports specifically singled-out the petitioners for such proved allegations.  

Deliberations of the Court:

7.            It appears from materials on record that there is no such specific Rules for holding election of BNFD thereby providing for any qualifications or disqualifications for participation in the said election. The only qualification therefore being that any valid voter can be a valid candidate. It is admitted position that the petitioners including the other contenders of the said election were declared valid voters through publication of voter list dated 25.09.2016 (Annexure-J). It is not the case of the respondents that the petitioners became disqualified to be the voters in the said election. Therefore, this Court has failed to realize as to how and under what criteria the Election Commission or the Election Appeal Board decided as to who should be the valid candidates for the said election.

8.            At the same time, it appears that, the complaints of one Amanullah and others were against the members of the outgoing executive committee which admittedly expired its tenure. This being so, in so far as the next election for the next executive committee is concerned, this Court is of the view that, the said allegations became infructuous unless the petitioners were declared disqualified to be the voters in the said election. On the other hand, the very complaints of the said Amanullah and others revealed that they in fact wanted the postponement of the outgoing executive committee because of some allegations lebelled generally against the entire executive committee. The inquiry reports, as annexed to the affidavit-in-opposition as Annexures-4 and 5, also reveal that some of the allegations have been proved against the entire executive committee. Therefore, it is apparent from record that even the inquiry officers did not single-out the petitioners in respect of any such allegations. Not only that, the allegations regarding defalcation or corruption have not been proved through inquires by both the Inquiry Officers unanimously in that the Officers reached contrary findings.

9.            This being the apparent picture before us and since there is no such election Rules disqualifying a particular candidate for a particular offence or allegations, we are of the view that, the Election Appeal Commission as well as the Election Board have acted without any reasonable basis and without guidance of any principle of law which is further more evident when it is apparent that only the petitioners have been picked up finally by the Election Appeal Board for cancellation of nominations when the allegations were in fact against the entire members of the outgoing executive committee. Learned Deputy Attorney General has also not made any sort of submissions successfully as to why the petitioners have been picked-up by the Election Appeal Board when the allegations were against all the members of the outgoing executive committee. This being so, we have no option but to hold that the Election Commission and the Election Appeal Board in fact acted in a very arbitrary manner and without any reasonable basis.

10.        However, since the submissions of the petitioners as regards political rivalry are questions of facts and cannot be determined by this Court under writ jurisdiction, we are not inclined to pass any comment on them.

11.        Regard being had to the above facts and circumstances of the case, it is apparent before this Court that the Election Commission as well as the Election Appeal Board have not acted lawfully and as such the impugned orders passed by them should be set aside by this Court. In view of above, we find merit in the Rule and as such the same should be made absolute.

In the result, the Rule is made absolute. Accordingly, the order dated 03.10.2016 passed by the respondent Nos. 3 & 4 in Appeal No. 1 & Appeal No.4 upholding the declaration of candidature of the petitioners as illegal “A®~hd” (Annexures-N & N-1) for the post of President (petitioner No.1) and Treasurer (petitioner No.2) respectively for Election-2016 of the Bangladesh National Federation of the Deaf (BMFD) passed by the Election Commission (respondent Nos. 5-7) vide their Memo No. 41.01.0000.046.99.001.16-281 dated 02.10.2016 (Annexure-M) is  declared to be without lawful authority and is of no legal effect.

         For effective disposal of the Rule, the respondent Election-Commission and other respondents are directed to declare the petitioners’ nominations as valid nominations for the BNFD Election-2016 and act accordingly in accordance with law.     

         Communicate this.

Ed.

 



Writ Petition No. 12774 of 2016