Khalilur Rahman (Md) Vs. Government of Bangladesh and others, 52 DLR (AD) (2000) 115

Case No: Petition for Leave to Appeal No. 1353 of 1999

Judge: AM Mahmudur Rahman ,

Court: Appellate Division ,,

Advocate: Mr. Mahmudul Islam,Mr. Nizamul Hoque Nizam,,

Citation: 52 DLR (AD) (2000) 115

Case Year: 2000

Appellant: Khalilur Rahman (Md)

Respondent: Government of Bangladesh and others

Subject: Writ Jurisdiction, Locus Standi,

Delivery Date: 2000-1-16

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Latifur Rahman CJ
Bimalendu Bikash Roy Choudhury J
A M Mahmudur Rahman J
Mahmudul Amin Choudhury J
 
Khalilur Rahman (Md)
………… …………Petitioner
Vs.
Government of Bangladesh and others
…...………………. Respondents
 
Judgment
January 16, 2000
 
Constitution of Bangladesh, 1972
Article 102
Paurashava Ordinance, 1977
Section 21
In writ jurisdiction under article 102 of the constitution variation of population of constituencies can not be resolved as it requires adjudication on facts on evidence. Chairman of a pourashava can not be an aggrieved person within the meaning of article 102 of the constitution because of gazette notification relating to delimitation of words. ……….(7) 
 
Lawyers Involved:
Md. Nazmul Huque Nasim, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner
Mahmudul Islam, Attorney-General, instructed by Md. Amir Hossain, Advocate-on-Record — For Respondent Nos. 1 & 2
 
Petition for Leave to Appeal No. 1353 of 1999
(From the judgment and order dated 21-7-1999 passed by the High Court Division in Writ Petition No. 2386 1998).
 
JUDGMENT
 
AM Mahmudur Rahman J.
 
This petition for leave to appeal by the writ-petitioner is from the judgment and order dated 21-7-99 passed by the High Court Division in Writ Petition No. 2386 of 1998 discharging the Rule Nisi.
 
2. The petitioner, an elected Chairman of Sailakupa Pourashava, District Jhenaidah, impugned Gazette Notification dated 2-7-98 publishing final list creating to delimitation of the Paurashava in the writ petition and obtained the Rule Nisi upon the respondents as to why the Gazette Notification should not be declared to have been made without any lawful authority and is of no legal effect.
 
3. Facts giving rise to the writ petition, briefly stated, are Prior to the impugned Notification respondent No. 2, the Deputy Secretary (Poura) Local Government Division, Ministry of LGRD and Co-operative of the Government of the People’s Republic of Bangladesh issued a general notice dated 21-3-96 with a copy to the petitioner stating that the Government decided to elect one Commissioner for each ward and to create three reserve seats for women commissioners and for this a Paurashava shall consist of 9 wards and 3 reserved seats for women and the Thana Nirbahi Officer is to act as Delimitation Officer and there shall not be variation of population more than 10% in between the wards. The Delimitation Officer on 26-5-98 published the list of 9 wards, 3 reserved seats for women and the voter list and sent the same to the Ministry to which the petitioner filed an objection without any result. Thereafter respondent No. 2 published the impugned Gazette Notification declaring the final list of the wards showing area of each ward.
 
4. The Rule, on contest, was discharged by the learned Judges of the High Court Division on the finding that there was no substantial difference in the arrangement of delimitation of wards and the Delimitation Officer on consideration of territorial unity, distribution of population and administrative convenience made the delimitation of the wards in question and that allegation on such variation of population cannot be resolved in a writ petition and that the petitioner was not a person aggrieved.
 
5. Md. Nizamul Huq Nasim, learned Advocate for the petitioner, submits that the finding of the learned Judges of the High Court Division that Delimitation Officer considered territorial unity, the distribution of population and administrative convenience cannot be sustained in absence of any paper for such finding and that the impugned Notification finally published showing number of population was violative of section 21 of the Paurashava Ordinance, 1977.
 
6. In section 21 of the Ordinance by Act No. II of 1998 the words “save with a variation of not more than 10%’ after the words “population” inserted in sub-section (1) of section 21 indicates that delimitation of wards is to be made taking into consideration territorial unity, distribution of population and administrative convenience as far as practicable and it does not speak about population only but as well as administrative convenience and territorial unity. The expression “as far as practicable” employed in section 21(1) vests in the Delimitation Officer authority to consider all the above 3 aspects viz, territorial unity, distribution of population and administrative convenience and, as such, decision by him evidently is to be based on consideration of these factual aspects.
 
7. The learned Judges of the High Court Division rightly held that the dispute regarding variation of population cannot be resolved in a writ petition under Article 102 of the Constitution since it requires adjudication on facts and on evidence and that the petitioner is not a person aggrieved within the meaning of Article 102 of the Constitution. The finding of the learned Judges of the High Court Division that there was no substantial difference regarding variation of population is based or comparison of draft list of the Delimitation (Annexure “C”) and the final list (Annexure “E”). In the instant case the petitioner is a Chairman of the Pourashava and because of the impugned Gazette Notification relating to delimitation of wards he cannot be said to be an aggrieved person within the meaning of Article 102 of the Constitution in that by such Notification no right of his either constitutional or legal has been infringed.
 
8. For the aforesaid reasons, we do not find any substance in the contentions of the learned Advocate for the petitioner. There is no substance in this petition.
 
The petition is dismissed.
 
Ed.