Farid Mia (Md.) Vs. Amjad Ali (Md.) alias Mazu Mia, 42 DLR (AD) (1990) 13

Case No: Civil Appeal No. 39 of 1988

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,Mr. Abdul Wadud Bhuiyan,,

Citation: 42 DLR (AD) (1990) 13

Case Year: 1990

Appellant: Farid Mia (Md.)

Respondent: Amjad Ali (Md.) alias Mazu Mia

Subject: Election Matter,

Delivery Date: 1989-4-2

Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhu­ry J
Shahabuddin Ah­med J
M.H. Rahman J
A.T.M. Afzal J
 
Farid Mia (Md.)
.........................Appellant
Vs
Amjad Ali (Md.) alias Mazu Mia
.........................Respondents
 
Judgment
April 2, 1989.
 
The Constitution of Bangladesh, 1972
Article 102
The election of a candidate could not be challenged under Article 102 of the Constitution but when the candidate after being elected assumes the office of chairman or other public office then any person can invoke the provision of sub-article 2 (b)(ii) of Article 102 requiring him to show under what authority he claims to hold that Office…….(8)
 
Article 102 of the Constitution can be invoked to require a person to show under what authority he claims to hold any public office only when the said person actually assumes that office or purports to do the same. In the present case, the day when the writ petition was filed on the ground that the appellant was a defaulter, the proper place to raise the question was the election tribunal. If the respondent chose not to go to the tribunal he ought to have waited for the appellant to hold the office to see whether the disqualification alleged continued to render the appellant an usurper to the office to entitle him to file a writ petition…….........(15 & 16)
 
Cases Referred to—
Bhairulal Chunilal Vs. State of Bom­bay, AIR 1954 Bombay 116; Sukedeo Narayan V. Mahadevananda, AIR 1961 Patna 475; Farzand Ali Vs. Province of West Pakistan, PLD 1970 (SC) 98; Md. Mostafa Hossain Vs. Md. Faruque, 40 DLR (AD) 10; University of Mysore Vs. Govinda Rao, AIR 1965 (SC) 491; AIR 1959, Bombay 2.
 
Lawyers Involved:
A.W. Bhuiyan, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record.- For the Appellant.
Dr. Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on- Record.-For the Respondent No. 1.
Respondent Nos. 2—9- Not represented.
 
Civil Appeal No. 39 of 1988.
(From the Judgment and Order dated 8 Novem­ber 1988 passed by the High Court Division, Sylhet Bench. In Writ Petition No. 13 of 1988).
 
JUDGMENT
 
A.T.M. Afzal J.
 
1. This appeal by leave is from Judgment and Order dated 8 November 1988 passed by the High Court Division, Sylhet Bench in Writ Petition No. 13 of 1988 making the rule abso­lute and declaring that the act of declaration of the appellant as elected chairman of No. 10 Laskarpur Union Parishad, Upazila Habiganj by the Returning Officer has been done without lawful authority and is of no legal effect and declaring further that the appel­lant is disqualified within the meaning of section 7 (2) (g) of the Local Government (Union Parishads) Ordinance, 1983 (hereafter referred to as the Ordi­nance) and as such he has no right to hold the Office of Chairman of the said Union Parishad.
 
2. The admitted facts of the case as can be gathered from the materials on record are that the ap­pellant, respondent No. 1 and respondent Nos. 8 and 9 submitted papers for election to the Office of Chairman of the aforesaid Union Parishad held on 10. 2. 88. Respondent No. 1 was the sitting Chair­man at that time. On the date of scrutiny on 11.1.88 he filed an application for cancellation of the nomination paper of the appellant on the ground that he was disqualified for election under section 7 (2) (g) of the Ordinance being a defaulter in repaying the loan taken from the Bangladesh Krishi Bank, Habi­ganj. The Returning Officer rejected the application. The respondent then took an appeal to the Upazila Nirbahi Officer which was also rejected. The election was held on 10.2.88 and the Returning Officer declared the appellant to have been elected as the Chair­man. When the papers were sent to the Election Commission for the purpose of publication of the names of the Chairman and members in the Official Gazette, respondent No. 1 filed an application before the Election Commission repeating his contention that the appellant was a defaulter, After hearing the parties and perusal of papers, the Election Commis­sion rejected the petition. Then the respondent filed a Writ Petition, No. 683 of 1988, challenging the va­lidity of the election. He, however, withdrew me said writ petition with the leave of the Court for filing the present writ petition (filed on 31.5.88)" by way of quo warranto upon the gazelle notification being made. "The name of the appellant was published in the Official Gazelle on 12 May 1988 but the appel­lant could not lake me oath as required under the law because of an order of slay obtained in the writ petition.
 
3. As regards the dispute as to whether the appellant was a defaulter in repaying his loans to the Krishi Bank, the respondent relied upon certain information’s alleged to have been supplied by the Krishi Bank on request. These were annexed to the writ pe­tition which the appellant had described as concocted and forged. The appellant contended that he had taken a project loan from the Krishi Bank in the name of M/s Lovely Flour Mill which was repaid with interest and no arrear remained outstanding. He also ob­tained a working capital loan (Cholti muldhan Reen) and paid the entire interest thereon and had applied for renewal of the same before expiry of the loan period but his application for renewal was under consideration. From Annexure 'A' and 'A' (1) to the writ petition, it appears that the Bank admitted that the entire project loan of Tk. 2,94,000/— had been repaid but there was an outstanding due of Tk. 3,74,166/— on ac­count of working capital loan. From Annexure 'D' (1) it appears that the date for repayment of the said loan was. 27.1. 87 but the appellant had already ap­plied for renewal of the said loan (vide Annexure A (1). The appellant also annexed a certificate (Annex­ure 1) to the affidavit-in-opposition issued by the Manager, Bangladesh Krishi Bank, Habiganj branch on 11.1.88 showing that the project loan had been repaid and there was an application pending for re­newal of the current working capital loan, the interest on which had been fully paid.
 
4. It appears that the appellant affirmed a sup­plementary affidavit before me High Court Division on 8.11.88 to which a defaulters' list date 11.1.88 is­sued by the Krishi Bank Habiganj branch to the Returning Officer, Sadar Upazila was annexed in which the appellant’s name did not appear. Il is the appellant’s case that in the loan agreement between the loanee and the Bank, there is a provision for renewal of the period of loan in respect of working capital (Cholti muldhan) for effective management and smooth functioning of the project itself and under the provi­sion aforesaid the appellant had made an application for renewal of the working capital loan well ahead of me expiry of the period of loan i. e. 27.1.87. In sup­port of me contention as lo provision for renewal of loan the appellant has annexed a document lo the leave petition (annexure "Y") containing procedure for renewal of working capital loan. To make the matter complete and up-lo-dale as lo me said loan, it may be slated at this stage that the appellant in his additional paper book dated 5.3.89 has given two documents issued by the Krishi Bank showing that me said loin has been renewed up lo 11.2.90. One of the documents, a certificate dated 14.2.89 from the Manager, Krishi Bank, Habiganj shows that the re­newal of the loan had been made on the basis of ap­plication of the appellant dated 20.1.87. The amount of loan extended up to 11.2.90 now stands at Tk. 4, 00,000/—
 
5. It appears that the High Court Division did not consider that in the defaulters' list supplied by the Bank, the appellant's name was not mentioned and that an application for renewal of the working capital loan had already been made under the agree­ment before the expiry of the date of repayment. However, it was found that the appellant was a de­faulter within the meaning of section 7 (2) (g) of the Ordinance and accordingly the declarations as already referred to were made. The High Court Division took the view that admittedly the loan was not repaid within 27.1.88 (according to Annexure D (1) it should be 27.1.87) and therefore, the appellant was a defaulter.
 
6. Leave was granted to consider whether in view of the alternative remedy of going to the Elec­tion Tribunal the writ petition was maintainable and whether the High Court Division, in view of the background history of the disputed loan in question acted properly in deciding a disputed question of fact under the writ jurisdiction.
 
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. Indeed, we have already held while rejecting C.P.S.L.A No. 21 of 1988 (quoted in the affidavit-in-opposition) that" such questions as to disqualification, etc. which are ques­tions of fact are better settled upon evidence which can be done more appropriately before a Tribunal. In the summary proceeding under Article 102 it is not desirable and, more often than not, not possible to record a finding as to a disputed question of fact".
 
8. Respondent No. 1 was clearly conscious of this position and accordingly withdrew his earlier writ petition 683/88 for filing this present petition "by way of quo warranto." The High Court Divi­sion, we must say, was therefore, not justified in giving first of the two declarations as referred to above. The election of a candidate could not be chal­lenged under Article 102 of the Constitution but when the candidate after being elected assumes the office of chairman or other public office then any person can invoke the provision of sub-article 2 (b) (ii) of Article 102 requiring him to show under what authority he claims to hold that Office. It is well known that the jurisdiction under the aforesaid provi­sion amounts to what in England used to be known as prerogative exercise of the writ of quo warranto, In England since 1938 all informations in the nature of qua warranto were abolished and it was provided that, in any case where a person acted in an office in which he was not entitled to act and an information in the nature of quo warranto would have lain against him, the High Court might, at the instance of any -person who would have been entitled to apply for such an information, grant an injunction restraining the former from so acting and might (if the case so required) declare the office to be vacant. (Halsbury's Laws of England, Third Edition Volume II Page 145 para 273).
 
9. Mr. A. W. Bhuiyan, learned advocate for the appellant, citing from the same book page 149 sub­mitted that an information in the nature of quo war­ranto was not issued where there was an alternative remedy which was equally appropriate and effective. The learned advocate has referred to some Indian deci­sions of which reference may be made to AIR 1954 Bombay 116 (Bhairulal Chunilal Vs. State of Bom­bay) where Chagla, CJ. observed that it is well settled that where you have statutory provisions deal­ing with the conduct of an election, the writ of quo warranto is displaced. An election then can only be challenged in the manner laid down by the Statute. The Bombay decision was followed by Patna High Court in AIR 1961 Patna 475 (Sukedeo Narayan V. Mahadevananda). In that case Untwalia, J. while re­jecting the application for a writ of 'quo warranto' observed, among others, that there was an alternative remedy which was equally appropriate and effective. Mr. Bhuiyan upon these authorities wanted us to take the view that the present writ petition even though in the nature of a quo warranto proceeding was not maintainable because of the alternative rem­edy of a tribunal.
 
10. We do not think that we have any choice left in the matter because in another context we have already approved and followed the view taken by the Supreme Court of Pakistan in the case of Farzand Ali Vs. Province of West Pakistan PLD 1970 (SC) 98 which is different from the view canvassed by Mr. Bhuiyan. In the case of Md. Mostafa Hossain Vs. Md. Faruque 40 DLR (AD) 10 in the main judgment of Shahabuddin Ahmed, J. reference has been made to that case. In that case Hamoodur Rah­man, CJ. observed as follows:
 
"An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the Statute. It determines the pri­vate rights of two persons to the same office, but a proceeding for an information in the nature of quo warranto is invoked in the public inter­est. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for en­forcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse illegally condoned by the authorities who were responsible for properly scrutinising a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing."
 
11. The terms of Article 98 of the Constitu­tion of Pakistan 1962 and Article 102 of our Consti­tution being almost the same and the laws governing the election now and then also being the same, we think that a correct view of the law has been taken with regard to a proceeding for an information in the nature of quo warranto and we sec no reason to depart from the said view.
 
12. Then Mr. A. W. Bhuiyan submitted that the appellant having not admittedly entered into the office of Chairman the writ petition was, in any case, not maintainable, even for an information in the nature of quo warranto. He has referred to the rel­evant provision of Article 102 of the Constitution and other authorities to support his contention. Dr. Kamal Hossain, learned counsel for the respondent, contended that it was possible to argue that the Writ petition was premature if the orthodox view of a writ of quo warranto was taken which presupposes an usurpation of a public office, franchise or liberty. Dr. Hossain, however, argued that the authority un­der Article 102 of the Constitution is much larger than what it used to have been under the named writs and the High Court Division in exercise of its au­thority under Article 102 may make a declaration that a person claiming to hold a public office cither had not the requisite qualification or was disqualified under the law to hold such office. Dr. Hossain has referred to the Shorter Constitution of India (9th Edi­tion) by Durga Das Basu under the Chapter quo war­ranto at page 552 where it has been said that a writ of quo warranto will issue in a case where the re­spondent has asserted his claim to the office. He has submitted that actual occupation of the office is not necessary and Article 102 can be invoked even when there is a "knocking at the door" for occupation. To hold otherwise, he submits, would amount to taking a very technical and narrow view of the powers avail­able to the High Court Division.
 
Sub-Article (2) (b) (ii) of Article 102 reads thus:
(2) The High Court Division may, if satis­fied that no other equally efficacious remedy is provided by law
(b) on the application of any person, make an order
(ii) requiring a person holding or purporting to hold a public office to show under what authority he claims to hold that office.
 
13. It appears to be clear from the language used in clause (ii) that the public office must be held or at least purported to be held by a person before an order can be made to show under what authority he claims to hold that office. To 'hold', among others, means to 'possess', to 'occupy' and 'holder' means oc­cupant of office (vide the Concise Oxford Dictionary of Current English). Admittedly the appellant has not yet taken oath of office and under the law he can­not enter upon his office of Chairman before taking such oath. It is, therefore, clear that the appellant is neither in fact holding nor purporting to hold any public office. Mr. Bhuiyan referred to Halsbury's Laws of England, 3rd Edition, Vol. II, page 147, Para 277 where it has been stated thus:
"An injunction can be granted only if the person has acted in the office. An information in the nature of quo warranto did not lie unless the Court was satisfied that the person proceeded against had been in actual possession and user of the particular office in question. A mere claim to be admitted to the office was not sufficient; there had to be a possession or user as well as a claim".
 
14. In the case of University of Mysore Vs. Govinda Rao AIR 1965 (SC) 491 Gajendra Gadkar, J. in explaining the nature of a quo warranto proceed­ing observed that before a citizen can claim a right of quo warranto he must satisfy the court, inter alia, that the public office is held by an usurper without legal authority. In the book of Basu referred to by Dr. Hossain, it has been noticed at page 552 that the application is premature until the respondent had as­sumed the office (reference AIR 1959, Bombay 2). There, however, appears to be no decision to support the author's further observation "or asserted his claim to it".
 
15. Having regard to the plain language of our Constitution and the authorities cited above, we think it is only reasonable to hold that Article 102 can be invoked to require a person to show under what authority he claims to hold any public office only when the said person actually assumes that of­fice or purports to do the same.
 
16. We do not agree with Dr. Hossain that we are taking a narrow view of the powers of the High Court Division since the appellant will in no time take oath and come to hold office and in that case there will be no question of prematurity. We have al­ready taken the view that Article 102 will not be available barring extraordinary occasion to side-track the normal forum of the tribunal to resolve election disputes, whatever be the ground for challenging the election. A question of disqualification may be a ground in the election petition but the same disquali­fication may be raised, if it continues in the proceed­ing for an information in the nature of quo warranto. In the present case, the day when the writ petition was filed on the ground that the appellant was a de­faulter, the proper place to raise the question was the election tribunal. If the respondent chose not to go to the tribunal but to raise it in the special jurisdic­tion under Article 102, he ought to have waited for the appellant to hold the office to see whether the disqualification alleged continued to render the appel­lant an usurper to the office. In a quo warranto pro­ceeding, the exercise of authority is discretionary and, among other things, the court takes into consid­eration the motive of the person who moves the court. In this particular case it will be clear from the facts noticed above that the respondent who was the sitting Chairman had been moving with the only motive to keep the appellant out of office of Chair­man to which he was elected on 10.2.88 and keeping himself in that chair as long as possible. Being un­successful everywhere with the objection that the ap­pellant was a defaulter the respondent moved one writ petition after another with the ulterior end of preventing the appellant from taking office by obtaining a stay order and this has been successfully done for more than one year. The huff and hurry in which the writ petition was moved only speaks of the lack of good faith on the part of the respondent. It is a matter of regret that the learned Judges of the High Court Division failed to notice that proceeding in the nature of quo warranto was not maintainable because the appellant was yet to hold the office. The writ petition, if not maintainable as a quo warranto proceeding, was all the more not maintainable for the reasons already stated. The objections to the maintainability of the writ petition including the one as to the appellant not holding office were taken with studied erudition in the affidavit-in-opposition, but it seems they were not properly and fully appreciated by the learned Judges of the High Court Division.
 
17. It has been noticed that the Krishi Bank did not include the petitioner in the defaulters' list, that the bank itself admitted that the application for re­newal of the loan was pending, that there is provi­sion for renewal of the loan and that now the Bank itself has admitted that the working capital loan has been renewed up to 11.2.90. We, however, do not like to say anything as to whether the appellant was a defaulter or not because it is not necessary in view of our other findings for which the impugned judg­ment is liable to be set aside. At the same time we must say that the finding of the High Court Divi­sion in that behalf cannot and should not be sus­tained for the reasons already indicated. The better view would have been to hold that in view of the facts of the case, it was not desirable to decide the is­sue in the writ jurisdiction without consideration of all the evidence—both oral and documentary. Now that the Bank has renewed the loan on the applica­tion of the appellant dated 20.1.87 the disputed ques­tion of the appellant's being a defaulter within the meaning of the Ordinance takes a new dimension which we do not feel called upon to discuss. For the present, we are clearly of the view that the writ peti­tion was not maintainable for the reasons already in­dicated.
 
18. In the result, therefore, the appeal is al­lowed and the impugned judgment set aside without any order as to costs. The writ be recalled.
 
Ed.