Case No: Civil Appeal No. 5 of 1990
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Mainul Hosein,Mr. T. H. Khan,,
Citation: 42 DLR (AD) (1990) 211
Case Year: 1990
Appellant: Mahmudul Alam Mantu
Respondent: Sanwar Hossain Talukder
Subject: Election Matter,
Delivery Date: 1990-4-4
Shahabuddin Ahmed, CJ.
MH Rahman, J.
ATM Afzal, J.
Mustafa Kamal, J.
Mahmudul Alam Mantu
Sanwar Hossain Talukder
April 4, 1990
The Constitution of Bangladesh, 1972
The Dhaka Municipal Corporation (Election of Commissioners) Rules, 1983
There is no provision for appeal against a decision of the election tribunal constituted for adjudication of election tribunal cases of Dhaka City Corporation. It does not exclude jurisdiction of the High Court Division under article 102 of the constitution. There is no word of finality attached to the decision of the election tribunal in the rules. Even if there was any, jurisdiction of the High Court Division under article 102, could not be limited. Judgement of the High Court Division with that it had no jurisdiction is set-aside. Writ petition was maintainable……………(8,12 & 15)
Cases referred to:
Regina Vs. Medical Appeal Tribunal, Ex parte Gilmore (1957) QBD, Vol. 1, page 574(583); Azizul Huq Vs. S.M. Hanif, Ltd. 7 DLR 287; Phani Bhusan Sen Vs. Sanat Kumar Maitra, 40 CWN 124; Kokku Parthasaradhi Naidu Grau Vs. Chintlachervu Koteswara Rao Garu and another, ILR 47 Madras, 369; Phani Bhusan Sen Vs. Sanat Kumar Maitra, 40 CWN 124; Amir Sultan Vs. Md. K. Alam 29 DLR (SC) 295; Ruhul Amin Vs. District Judge, 38 DLR (AD) 172; Jamal Shah Vs. Election Commission, PLD 1966 (SC)1 (26).
T.H. Khan, Senior Advocate (Abdul Wahhab, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant.
Mainul Hosein, Advocate, (Md. Joynal Abedin, Advocate with him) instructed by M. Nowab Ali, Advocate-on-Record—For the Respondent No. 1.
Not Represented—Respondent Nos. 2-12.
Civil Appeal No. 5 of 1990
(From the Judgment and Order dated 12 December, 1989 passed by the High Court Division, Dhaka in Writ Petition No. 998 of 1989).
ATM Afzal J.
1. This appeal by leave is from the impugned order dated 12th December 1989 passed by a Division Bench of the High Court Division, Dhaka rejecting summarily the Writ Petition of the appellant, No. 998 of 1989, on the ground that it was not maintainable.
2. The appellant's case is that he was declared elected as a Commissioner of Ward No. 71 of the Dhaka Poura Corporation in the election held on 3.3.88. Respondent No.1, a contesting candidate, filed an election petition being Tribunal Case No.5 of 1988 before the Election Tribunal, Subordinate Judge, 3rd Court, Dhaka on various grounds stating, inter alia, that the election at one of the 5 centres, namely, the Central Press Staff Quarter Primary School Centre could not take place as the Presiding Officer, the Election Officer and others had fled away from that centre due to disturbance and deteriorating law and order situation. It was further asserted by respondent No. 1 that on an application filed by him before the Election Commission, Mr. AKM Jahangir, a Magistrate, First Class was deputed to enquire into the matter and he submitted a report stating that there was in fact a serious disturbance created by some miscreants in the centre. The appellant contested the election petition. The tribunal on consideration of the facts and evidence of the case, by its judgment dated 22.8.89, declared the election of the appellant void upon holding that the election at the aforesaid centre could not take place due to disturbance.
3. The tribunal's order was challenged by the appellant by filing the aforesaid writ petition raising, as the impugned order shows, two grounds for consideration of the Court;
(ii) that in exercise of jurisdiction under Article 102 of the Constitution, the High Court Division should not hesitate to issue a writ in the nature of certiorari as the judgment of a court is under challenge.
4. The learned Judges of the High Court Division, however, themselves raised a question as to whether the application (writ petition) as filed was maintainable or not. It was observed that if the application is maintainable "surely we are called upon to answer the points raised by the learned advocate for the petitioner otherwise without coming to the points raised, we can dispose of the petition by holding that it is not maintainable at all". Then the learned Judges referred to the various provisions of the Dhaka Municipal (Election of Commissioners) Rules, 1983 (hereafter referred to as the Rules) and observed that the decision of the Election Tribunal is final and no appeal is provided under the Statute unlike the Union Parishad and the Upazila Parishad Ordinance. It was, therefore, concluded that the writ petition as filed was not at all maintainable and accordingly it was rejected.
5. Leave to appeal was granted to consider whether the view taken by the High Court Division as to the maintainability of the writ petition was correct or not.
6. Mr. T.H. Khan, learned counsel for the appellant, has submitted that there being no other forum provided by law for appeal and there being no other efficacious remedy open to the aggrieved party against the order of the tribunal, the jurisdiction of the High Court Division under Article 102 of the Constitution was clearly attracted and the High Court Division erred in holding that the writ petition was not at all maintainable. On the merit Mr. Khan submitted that in spite of the appellant's objections the tribunal acted illegally in admitting and relying upon secondary evidence of some documents which has vitiated its decision and the High Court Division having rejected the writ petition on the untenable ground of maintainability, the appellant was deprived of the opportunity of proving his said grievance.
7. The Dhaka Municipal Corporation Ordinance No. XL of 1983 in Chapter II provides for election of Commissioners for the wards. In exercise of the powers conferred by section 157 of the Ordinance, the Government framed the aforesaid Rules, Part III of which provides for 'election disputes'. It is not disputed that no provision has been made either in the Ordinance or in the Rules for an appeal from the decision of an election tribunal unlike the Local Government (Union Parishads) Ordinance 1983 and the Local Government (Upazila Parishads and Upazila Administration Re-Organization) Ordinance, 1982. The High Court Division seems to have taken the view that the writ petition is not maintainable because no appeal has been provided for against the decision of the tribunal and the same is final.
8. That there is no appeal provided against a decision can never be urged to exclude the jurisdiction of the High Court Division under Article 102 of the Constitution, rather it is all the more reason that the petition in such a case (of no remedy) cannot be" thrown out so easily. As to the finality of the decision of the tribunal, we have not been able to find any provision in that behalf either in the Ordinance or in the Rules, nor the High Court Division referred to any such provision. Rule 54(2) provides that the tribunal shall....make such orders as it may think fit. Neither in this rule nor anywhere else it has been provided that the decision of the election tribunal on an election petition shall be final and shall not be called in question in or before any court as was originally provided under section 29(3) of the aforesaid Union Parishad Ordinance. On amendment of section 29 appeal has been provided under clause (4) to the District Judge and it has been provided now that the decision of the District Judge on such appeal shall be final. No such finality has been attached to the decision of the tribunal under the Dhaka Municipal Corporation Ordinance or the Rules made thereunder. The learned counsel appearing for the parties before us also could not point out any such expression of finality in the Rules to which reference has been made by the learned Judges in the impugned Judgment. We have, therefore, found it difficult to appreciate as to the basis upon which it has been held that the decision of the Tribunal is final.
9. It is true that in many Statutes finality is often imparted to decision/order of courts, tribunals and other authorities. The Union Parishad Ordinance referred to above (section 29(4)) is an illustration on the point. Even such expressions of finality were held to be not of any bar in a proceeding for certiorari in England or in exercise of the power of revision by the High Court in this country. In Regina Vs. Medical Appeal Tribunal, Ex-parte Gilmore (1957) QBD, Vol. 1, page 574 (583) Denning L. J. in considering section 36(3) of the Act of 1946 which provides that "any decision of a claim or question"..…. shall be final." and whether those words preclude the Court of Queen's Bench from issuing a certiorari to bring up the decision observed that "This is a question which we did not discuss in Rex V. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, because it did not there arise. It does arise here, and on looking again into the old books I find it very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words. The "final" is not enough. That only means "without appeal."
It does not mean "without recourse to certiorari." It makes the decision final on the facts, but not final on the law. Notwithstanding that the decision is by a statute made "final", certiorari can still issue for excess of jurisdiction or for error of law on the face of the record".
10. In the case of Azizul Huq Vs. S.M. Hanif, Ltd. 7 DLR 287 Ahmed, Acting Chief Justice, sitting in a Division Bench, in construing sub-section (6) of section 29 of the East Bengal Premises Rent Control Act 1953 which provided that an order of the Rent Controller subject only to the appeal before the District Judge shall be final observed that. "The word "final" in relation to the orders of the court occurring in several statutes has been construed to mean that they are not appealable; nevertheless, they are open to revision or review. This is the view held in the case of Phani Bhusan Sen Vs. Sanat Kumar Maitra reported in 40 CWN 124 and also in the Full Bench case of the Madras High Court in the case of Kokku Parthasaradhi Naidu Grau Vs. Chintlachervu Koteswara Rao Garu and another, ILR 47 Madras, 369".
11. In the case of Amir Sultan Vs. Md. K. Alam 29 DLR (SC) 295, the 7 DLR case has been noticed with approval and it has been held that the use of the word "final" in section 43 of the Wakfs Ordinance 1962 does not mean that the District Judge is not amenable to the jurisdiction of the High Court. In the case of Ruhul Amin Vs. District Judge, 38 DLR (AD) 172, it has been held that a revision will lie from an order of the District Judge passed under section 29(4) of the Union Parishad Ordinance 1983 even though it is provided therein that the decision of the District Judge on such appeal shall be final. It is, therefore, a settled law that the power of revision is not excluded even if a statute imparts finality to any decision/order of a court, for, the word, "final" has been held to mean that there is no appeal from the decision. If the tribunal in the present case were a court, there could not have been any doubt that its decision was amenable to the revisional jurisdiction of the High Court Division. If it were so and it could not but be so, then the high Constitutional jurisdiction of the High Court Division under Article 102 to entertain an application from an order of the tribunal must be held to be undoubted. It is not necessary to cite any authority for the proposition that words of finality in a subordinate legislation can never limit the jurisdiction of the High Court Division vested under the Constitution. If at all needed there is Jamal Shah Vs. Election Commission, PLD 1966(SC)1 (26) where Cornelius, C.J. observed thus; It must be remembered that a requirement of finality of determination contained in the constitution is to be placed on a wholly different and certainly at a much higher level than provisions in sub-constitutional statutes giving finally to the determination of Tribunals Constituted thereunder. In the latter case a High Court acting under Article 98 could indeed invoke its superior authority to impose upon such statutory Tribunal, despite the finality given to its determination, the requirement that its actions should be within its jurisdiction, that they could not be in defeat of that jurisdiction and that such action should be shown to have been performed with lawful authority. In the absence of a valid provision barring such interference, the High Court acting under Article 98 would, I conceive, have the authority to interpret the relevant statues, in respect of the limitations upon jurisdiction, the obligations to exercise the jurisdiction, and the scope of the authority conferred by such statue."
12. All this exercise, however, appears to be academic in the present case because it has already been noticed that there is no word of finality attached to the decision of the election tribunal in the Rules. Even if there was any, the jurisdiction of the High Court Division under Article 102 of the Constitution could not be limited by such words of finality. Whether there is anything on the merit of the case for interference in the matter is, however, an entirely different question. It has been noticed that the High Court Division in the present case has admittedly not adverted to the submission on merit upon taking the view that the petition is not maintainable.
13. Mr. Mainul Hossain, learned counsel for respondent No.1, submitted that perhaps the High Court Division was of the view that a revision would lie instead of a writ petition and in any case there was no scope to interfere as the findings of the tribunal were based on facts and made with jurisdiction. The first part of Mr. Hossein's submission is not borne out by the impugned judgment and secondly, the principle of Ruhul Amin's case (supra) is no authority in the case of a Tribunal constituted by the Election Commission. We shall not examine the second part of Mr. Hossein's submission as it is the function of the High Court Division under the Constitution which has not been performed under a mistaken view of its powers.
14. In view of the discussion above, we find no difficulty whatever in holding that the High Court Division was plainly wrong in rejecting the writ petition on the ground that it was not maintainable.
15. The appeal is accordingly allowed and the matter is remitted to the High Court Division for disposal on merit. The writ petition will be heard as a motion as soon as the business of the Court permits.
There will be no order as to costs.