Mahmud Hussain Vs. Sayeb Ali, 41 DLR (1989) 44

Case No: Civil Revision No. 168 of 1988

Court: High Court Division,,

Advocate: Mr. Dewan AMS Zaman,Mr. M.A. Mannan,,

Citation: 41 DLR (1989) 44

Case Year: 1989

Appellant: Mahmud Hussain

Respondent: Sayeb Ali

Subject: Election Matter,

Delivery Date: 1988-10-6

Supreme Court of Bangladesh
High Court Division
(Civil)
 
Present:
AKM Sadeque J
 
Mahmud Hussain
........................Petitioner
Vs.
Sayeb Ali
.................Opposite party
 
Judgment
December 6, 1988
 
Code of Civil Procedure (V of 1908)
Order 39, Rule 1 and Section 151
Whether the High Court Division can interfere with the discretionary power of the Election Tribunal exercisable under Order 39, rule 1 and section 151 of the Code of Civil Procedure.
 
Cases Referred to-
27 DLR 388, 28 DLR 189, 29 DLR 111, 38 DLR (AD) 172, 37 DLR 71, 38 DLR (AD), 172, 38 DLR (HC) 41, 38 DLR 262, 38 DLR (HC) 435, 31 DLR 119, 29 DLR (HC) 111 & 31 DLR 119, 27 DLR 388, 38 DLR (HC) 41, 38 DLR (HC) 262, 38 DLR 435, 38 DLR (HC) 262.
 
Lawyers Involved:
Dewan AMS Zaman, Deputy Attorney General, Kibria Chowdhury and Akhlaque Rahman, Advocates — For the Peti­tioner.
M.A. Mannan, Advocate — For the Opposite.
 
Civil Revision No. 168 of 1988
 
JUDGMENT
 
AKM Sadeque J.
 
1. Can the Election Tribunal constituted under Or­dinance 51 of 1983 issue an order of injunction ei­ther under Order 39, rule 1 or section 151 of the Civ­il Procedure Code? This is the main question before this court in this rule. Other questions that inciden­tally arise are whether this court can interfere with the order of Election Tribunal in exercise of its Revi­sional Jurisdiction and whether it is proper for this court to interfere with the discretionary order of the Election Tribunal.
 
2. The following circumstances gave rise to this rule.
 
The petitioner filed Election Case No. 1 of 1988 before the Election Tribunal (Court of Senior Assist­ant Judge) Golapganj, Sylhet alleging that the peti­tioner was a contesting candidate along with the op­posite parties No. 1-5 in the election for the office of the Chairman of Fulbari Union Parishad. The elec­tion was held on 10.2.88 in five polling stations namely Fulbari Aziria Madrasha, Dora Govt. Pri­mary School, Union Parishad, Hajipur Govt. Pri­mary School and Boraya Maizbhag Govt. Primary School. It was alleged that on 10.2.88 except in Haj­ipur Govt. Primary School and Boraya Maizbhag Govt. Primary School polling cantres elections were held fairly. In Hajipur Govt. Primary School and Bo­raya Maizbhag Govt. Primary School Centres elec­tion had teen disturbed and disrupted by the opposite party No. 1 and his followers. Therefore, election in these two centres had been stopped. Fresh election had been held in these two centres on 10.4.88. The petitioner was declared elected as Chairman of the Union Parishad upon counting of the votes of all the five centres, and the result was published in the Ex­tra Ordinary Gazettes on 29.5.88 on 2.7.88, under the order of the Chief election Commissioner, there was re-election in Boraya Maizbhag Primary School and also Fulbari Aziria Madrasha centres. This time the opposite party No. 1 was declared elected chair­man and his name was published in the official Gazette on 17.7.88. The petitioner then filed an elec­tion dispute petition before the Election Tribunal, Golapgonj being Election Case No. 1 of 1988 alleg­ing that the opposite party No. 1 adopted unfair means and corrupt practices during the election and re-election and was trying in undue haste to take over charge of the office of the chairman in collusion with local authorities. The petitioner also filed a pe­tition for rule of temporary injunction with ad-interim order against the opposite party No. 1 and 8 for restraining them from taking over and handing over charge of the office of the Chairman No. 3 Ful­bari Union Parishad. The Election Tribunal issued rule of ad-interim injunction directing the opposite party No. 1 and 8 to show cause against the prayer of injunction. The opposite party No. 1 filed objec­tion of 27.8.88. The injunction matter was heard and disposed of by the Election Tribunal, Golapgonj, Sylhet by his judgment and order dated 22.9.88 re­jecting the prayer for temporary injunction on the sole ground that the Election Tribunal had no jurisdiction to grant the injunction prayed for.
 
3. Being aggrieved by this order rejecting the prayer for temporary injunction the petitioner has obtained this rule. The opposite party No. 1 opposed the rule by filing an affidavit in opposition.
 
4. Mr. Dewan A. M. S. Zaman, the learned Ad­vocate for the petitioner has submitted that the Elec­tion Tribunal had relied on the decisions in the case of Md. Amjad Hossain Howladar Vs. Chief Election Commissioner reported in 27 DLR 388; Mozahid Uddin Ahmed, Chairman, Deokapan Union Parishad Vs. Munsif, Sunamganj, Sylhet and others reported in 28 DLR 189; and Abdul Gafur Vs. Election Tribunal and Munsif Second Court, Feni, Noakhali and another reported in 29 DLR 111 which were in the light of the Local Govern­ment Ordinance 1973 and 1976 and over looked the decision in the case of AKM Ruhul Amin and oth­ers Vs. District Judge and Appellate Election Tribu­nal Bhola and three others analogous matter, 38 DLR (AD) 172. Which is in the light Of the Ordinance No. 51 of 1983.
 
5. Elaborating his arguments Mr. Dewan A.M.S. Zaman, has invited my attention to the amendment of section 29 of the Ordinance 51 of 1983 by Ordinance No. 44 of 1984 dated 9th July, 1984. He has submitted that this amendment has brought about a fundamental change in the status of the Election Tribunal. Apart from this he has sub­mitted that there are indications enough in rule 47, 48 and 49 under Ordinance 51 of 1983 to hold that the Election Tribunal had all the power of the Civil Court including the power to issue an order of in­junction as an interlocutory measure. To the support of his view he has largely depended upon the decisions in the case reported in 38 DLR (AD) 172 (Supra). Mr. Dewan A.M.S. Zaman the learned advocate has particularly laid stress upon the obser­vation of the Appellate Division in paragraph 40 and 41 of the Judgment by his Lordship the Chief Jus­tice F.K.M.A. Munim. He has also made a reference to rules 47 and 48 of the Union Parishad Election Rules 1983, and submitted that it would be seen from the rules that the Election Tribunal has been invested with powers of Civil Court, and the procedure before the tribunal would be same as before an ordinary Civil Court. After quoting the rule 47 and 48 his Lordship has observed-

"These provisions imply that if any appeal is provided against the decision of an Election Tribunal, it must lie to a person of authority higher than such Tribunal and at the same time exercising the powers and functions of a Court, particularly when the Election Tribunals are manned by Munsifs".
 
Paragraph 41 of the Judgment runs as follows:
 
"Finally, an Election dispute relates to a right to office. The dispute is Civil in nature. Judicial officers who decide civil disputes have been empowered to decide Election dispute. Pro­cedure for holding the trial of such disputes is the same as that of an ordinary Civil Court be­ing constituted by Munsifs and empowered to decide Election disputes relating to right to of­fice, after taking evidence and hearing argu­ments, both on facts and law, are definitely exer­cising judicial powers, and not administrative power though it may be that they are constituted by the Election Commission, an executive au­thority."
 
6. After this observation his Lordship went on to say that District Judge, as used in Article 29(4) of the Ordinance does not mean persona designate i.e. as private or personal capacity but clearly indicates his office i.e. the District Judge of which he is the presiding Judge."
 
7. Upon this reasoning his Lordship found that in exercising Revisional powers under section 115 of the Code of Civil Procedure against the decision of any Election Appellate Tribunal, High Court Divi­sion can grant any relief to which any aggrieved par­ty is entitled under the Ordinance.
 
8. Mr. Dewan A.M.S. Zaman has argued that rules 47 and 48 studied in the light of observation in this decision and also the amendment of section 29 of Ordinance No. 51 of 1983 would show that the Election Tribunal was as a matter of fact a Civil Court with all its powers. By amendment of section 29, the District Judge has been made the appellate au­thority of the Election Tribunal and the District Judge has been found not persona designate but a Civil Court in the aforesaid decision. As an appeal is continuation of a suit so an appeal from a decision of the Election Tribunal in Election petition is also a continuation of the same Election petition. There­fore if the appellate authority of the Election Tribu­nal is found to be a court the Election Tribunal also partakes the character of a court. He has further pointed out that under Ordinance 51 of 1983 unlike under the Ordinance of 1973 Munsifs have been ap­pointed Election tribunals; this also strengthens the view that under the Ordinance of 51 of 1983 the Tri­bunals are Civil Court. Mr. Zaman has also cited the decision in the case of Habibur Rahman vs. Shah Alam Mia reported in 37 DLR 71 in sup­port of his submission that the appellate Election Tribunal is competent to issue an order of injunc­tion. In this decision by a single judge it has been held that-
 
"The District Judge is a court and if no pro­vision is provided any where in the special stat­ute for granting a relief to an aggrieved party which is required for the ends of justice, he is to follow the procedure laid down in the Civil Pro­cedure Code. So where the facts and circum­stances demand that some sort of incidental order is necessary for the ends of justice, but there is no provision in the special statute the District Judge is not powerless and he can grant such remedy under section 151 of the Code of Civil Procedure."
 
9. From this Mr. Zaman argued that if the Ap­pellate Tribunal could give a remedy under section 151 of the Civil Procedure there is no reason why the Election Tribunal from whose order the appeal has arisen can not grant any such relief.
 
10. Mr. M.A. Mannan, the learned Advocate for the opposite parties on the other hand submitted that the subject-matter of the intended injunction docs not exists. He has drawn my attention to the par­agraph No. 6 (page 10) of the affidavit in opposition on behalf of the opposite parties where it has been stated that after the publication of name of the oppo­site party No. 1 in the final official Gazette dated 17.7.88 as elected chairman of the Union Parishad he has been sworn in the office on 3.8.88 and no ques­tion of taking over charge of the office would arise. In an elective office obtained by election there is nothing to make over and take over except handing over any cash in hand of the out-going incumbent. It has been further stated that the opposite party No. 1 has already entered his office after taking oath in ac­cordance with section 9 of the Ordinance. Mr. M.A. Mannan, the learned Advocate, has submitted that this assertion in the affidavit in opposition have not been refuted by the petitioner in an affidavit in reply. There is nothing left to be the subject-matter of the injunction.
 
11. Apart from these minor submissions the whole gamut of the argument of the learned Advo­cate for the opposite parties was on two points namely that the Election Tribunal was not a-civil court with all its powers and no Revisional applica­tion under section 115 of the Civil Procedure Code lay against an order of Election Tribunal. He has submitted that all that has been decided in 38 DLR (AD) 172 is that the Appellate Tribunal who is the District Judge is a court and re­vision lies from an order of the Appellate Judge. He has submitted that this fact alone will not make the Election Tribunals civil courts with all the powers under the C.P.C. and make the orders of the Election tribunals revisable by this Court under section 115 of the C.P.C. Mr. M.A. Mannan the learned Advo­cate has argued that the Local Government Ordinance are special laws for purposes. Rules 47 and 48 only empower the Tribunal to follow the Civil Procedure Code and act as a civil court for a limited purpose, namely, for the purpose described in rule 45. Accord­ing to rule 45 the petitioner could claim as a relief only (a) that the Election of any returned candidate is void and that the petitioner or some other person has been duly elected (b) that the Election as a whole is void. Mr. Mannan has argued that since the Election Tribunals were not established under Civil Court Act with all the powers of the civil Court under the Civil Procedure Code, but have been established only for the two purposes set out above, the question of the tribunals excising power under Order 39, rule 1 or section 151 of the Code does not arise. Mr. M.A. Mannan, the learned Advocate had submitted that al­though the decision in 28 and 29 DLR were in the light of the Local Government Ordinance 1973 and 1976. There is no fundamental difference between the old Ordinance and the present one, ex­cept that an amendment has brought about in section 29 of the Ordinance 51 of 1983 by way of giving right of appeal to the District Judge. It has been sub­mitted to me this right of appeal has been given only to enable the aggrieved party to avail of a relief by way of appeal on account of Fourth Amendment of the Constitution which has taken away the juris­diction of the High Court to supervise the orders and activities of the Tribunals along with the civil Court. Since after the amendment the Tribunal were excluded it was necessary to invest the District Judge with the appellate power as no substitute. Further more, the amendment was necessitated by the sus­pension of the constitution which had also taken away the writ jurisdiction of the High Court. There­fore, he submits that the intention of this amend­ment was not to convert the Election Tribunal to civil Court but to grant a relief to the parties aggrieved by the decision of the Election Tribunal. Mr. M.A. Mannan, the learned Advocate has cited certain decision to fortify his arguments. They are the cases reported in 38 DLR (HC) 41, 38 DLR 262, 38 DLR (HC) 435, 31 DLR 119 which are in the light of Ordinance 1976. He has pointed out that the provision of Ordi­nance 1976 and the rules there under are akin to the provisions in Ordinance of 1983 and the rules there ­under. Therefore the reasoning in the decisions re­ported in 29 DLR (HC) 111 and 31 DLR 119 are available also in a case under Or­dinance 51 of 1983.
 
12. I have given my anxious consideration to the submissions of the learned Advocates for both sides. It appears from the series of decisions placed from the bar that the very question whether an Elec­tion Tribunal was a civil court exercising all the powers under Civil Procedure Code including the power under Order 39 rule 1 C.P.C. came up before the court for consideration time and again. The ques­tion whether the Election Tribunal could issue an or­der of injunction in exercise of its power under section 94 and 151 of the C.P.C. also came up for con­sideration, The main stay of the arguments in favour of holding the Election Tribunal as a civil Court with all the powers vested in it under Civil Procedure Code were the two provisions of the Local Govern­ment Ordinance of the year 1973, 1976 and the present one of the year 1983. These two provisions occurred in the Ordinance, 1983 as rules 161A and 161B. The self-same rules were incorporated in the Local Government Ordinance of 1983 and the rules have been incorporated as rules 47 and 48. The rules are as follows:
The rule 47 runs as follows:
 
"Procedure before Tribunal. Subject to the provisions of these rules, every Election peti­tion shall be tried, as nearly as may be, in accor­dance with the procedure for the trial of suits un­der the Code of Civil Procedure, 1908".
 
The rule 48 runs as follows:
 
"The Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure 1908 and shall be deemed to be a Civ­il Court within the meaning of section 480 and 482 of the Code of Criminal Procedure, 1898.
 
13. Principally, depending on these two provi­sions which occurred in all the three Ordinances of 1973, 1976 and 1983 it was argued in all the deci­sions placed before me that the Tribunal had a char­acter of civil Court with all of its powers, including the powers under Order 39 rule 1 of the C.P.C. But this contention was negative, and it was found in all the decisions that the Tribunal was a creature of the Election Commissioner of the government for a special purpose of expeditious disposal of Election dispute and the Tribunal would exercise the powers of civil Court only for disposal of the matter before it. This matter could not travel beyond that has been specified in the Ordinance. It was also held in the case of Shamsul Huq Sikder vs. Election Tribunal, 27 DLR 388 that the Election Tribunal could not also exercise the power under section 94 of the Civil Procedure Code to pass an order for ends of justice. The matters before the Tribunal were of lim­ited nature in which an order of injunction was not necessary or concomitant. Mr. D.C. Bhttacharjee, J. delivering the judgment of the Division Bench had relied upon the certain Indian decision for his views. It may be mentioned that the decision was made on the basis of Ordinance of 1973; In the case of Mozaharuddin Ahmed Chairman vs. Munsif Sunamganj and 48 others a Division Bench of this court fol­lowed the decision in the 27 DLR 388. In that decision it was pronounced that Election Tribunal was not a civil court. The Election Tribunal not be­ing a civil Court had no power to grant temporary in­junction under Order 39 rule 1 for similar reasons as given under the decision case of Shamsul Hoque Sikder. Subsequently in the case of Abdul Gafur vs. Election Tribunal and Munsif Second Court Feni a Division Bench of this Court constituted Ruhul Is­lam, CJ. (as he then was) and MH Rahman, J, de­cided that an Election Tribunal acting as such was not competent to issue temporary injunction under Order 39 rule 1 C.P.C. as the Election Tribunal was not a civil Court. This decision was in respect of a dispute within the Ordinance of 1976. In this deci­sion the case of Shamsul Hoque Sikder was relied upon. As a matter of fact so far the power of the Election Tribunal is concerned it remains the same both under the Ordinance 1973 and under Ordinance 1976, since the rules 61 A and 61 B under the Ordi­nance of 1973 had been incorporated as rules 47 and 48 in the rules under Ordinance of 1976 and consider­ation in both the cases rested on the same principle. It appears that the rules 47 and 48 in the Ordinance of 1983 are the same as in Ordinance, 1976. There­fore reliance upon the rules 47 and 48 of the Ordi­nance of 1983 for finding that the tribunal is a civil Court has no further value because this aspect of the case is now well settled. It appears that from the re­cent decision in the case of Muktad Hossain Majumdar Vs. Abdul Bashar Majumdar 38 DLR (HC) 41, Abdul Mazid Howladar Vs. Alhaj Mozibul Haque Talukdar & ors, 38 DLR (HC) 262, Hosne Zaman Sarkar Vs. Election Tribunal and Munsif and others 38 DLR 435 of which have been decided in the light of the Ordinance, 1983 sup­ports the view that the Election Tribunal is not a civil court with all the powers of the Civil Procedure Code. In these decisions rule 47 and 48 had been interpreted to mean that the Tribunal would have the powers of a civil Court trying a suit under the Civil Procedure only for decision of the matter before it and not beyond. It has held that the Tribunal is not a civil Court established under the Civil Courts Act, 1887 and it is not a part of the judicial system of the country. The Tribunal was created for a limited pur­pose by a special law. It has also held that the Tribu­nal was created by an executive authority and is un­der the superintendence of the said authority.
 
14. It is noticed that under section 28, the transfer of a Election petition from one Election Tri­bunal to another Election Tribunal is to be made by the Election Commissioner. This power of transfer has not been given to the District Judge who is the appellate authority. The District Judge transfers a case under section 24 of the Civil Procedure Code from one court to another under his jurisdiction. This indi­cates that the Election Tribunals are not amenable to all the provisions of the Civil Procedure Code.
 
15. It appears that in the case reported in 38 DLR 172 the question before their Lordships was that procedure is available to a person for chal­lenging the order passed by the District Judge under Article 29(4) of the Local Government (Union Parishad) Ordinance, 1983, in other words whether against such order revision under section 115 of the Civil Procedure would lie to the High Court Division or an application under Article 102 of the Constitution is to be preferred. Their Lordships held that both the remedies against an order of the District Judge, ap­pellate authority of the Election Tribunal were avail­able. The question whether the Tribunal themselves were a civil Court was not before their Lordships and there was no findings on that. The observations in Para 40 and 41 of the Judgment appear to be obitardictum. Now I do not find why the Appellate Tribu­nal themselves should be considered as a civil Court against the weight of the decision in the case of 27 DLR 38, 28 DLR 198; 29 DLR 111, only because the appellate authority of the Tribunal has been found to be a civil Court. It is true that there is incongruity if the appellate authority has one character and the tribunal from which appeal arises has a different character. It is for the legislatures to bring about uniformity between the super structure and infrastructure of an institution. So long this is not done incongruity will remain. The Election Tribunals at the apex (appellate stage) are civil Courts but Election Tribunals at the bottom are not civil Courts.
 
16. It may be pointed out that rule 45 of the Ordinance, 1983 specifically sets out the remedy in Election petition, both remedies are declaratory. An order of injunction under Order 39 rule 1 of the C.P.C. is not necessary for achieving the reliefs con­ceived under rule 45. Again an order of injunction is not necessary for preservation of the subject-matter of the election petition. Therefore an order of injunc­tion is not called for in an election petition either under Order 39, rule 1 C.P.C. or section 94 of the said Code. For these reasons I am fortified by the de­cision reported in 27 DLR 388.
 
17. As already pointed out by Mr. M.A. Mannan, the learned Advocate for the opposite party that opposite party No. 1 has taken oath and there is nothing to take over and make over formally for the office to which the opposite party has been elected. This fact also would weigh against an order of in­junction. In the above reasons I find that the learned Election Tribunal is perfectly justified in holding that he had no authority to issue an order of injunction and no order of injunction should be issued by him.
 
18. Lastly, since the Election Tribunals are not civil Courts they also are not amenable to the Revisional jurisdiction of the High Court Division. This view was also taken by my learned brother Daliluddin Ahmed J. in the case reported in 38 DLR (HC) 262.
I do find nothing to interfere with the impugned order.
 
Hence the rule is discharged without any order as to costs.
 
Ed.