Mahmudul Haque (Md) Vs. Md. Hedayetullah and others, 48 DLR (AD) (1996) 128

Case No: Appeal No. 28 of 1995

Judge: Mohammad Abdur Rouf ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Dr. Kamal Hossain,,

Citation: 48 DLR (AD) (1996) 128

Case Year: 1996

Appellant: Mahmudul Haque (Md)

Respondent: Md. Hedayetullah and others

Subject: Writ Jurisdiction, Election Matter,

Delivery Date: 1996-1-3


Supreme Court
Appellate Division
Civil
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
 
Mahmudul Haque (Md)
…………………… Appellant
Vs.
Md. Hedayetullah and others
…………………….. Respondents
 
Judgment
January 3rd, 1996
 
Constitution of Bangladesh, 1972
Article 102
In election matters the jurisdiction of the High Court Division cannot be invoked under Article 102 of the Constitution except on a very limited ground of total absence of jurisdiction (coram non-judice) or malice in law for the purpose of interfering with any step taken in the election process. …. (10)
 
Representation of People Order (PO No. 155 of 1972)
Article 14(3)
Where a right or liability is created by a statute providing special remedy for its enforcement such remedy as a matter of course must be availed of first. … (10)
 
Lawyers Involved:
Khan Mahbubuddin Ahmed, Senior Advocate Supreme Court, instructed by Sharifuddin Chaklader, Advocate-on -Record—For the Appellant
Dr. Kamal Hossain, Senior Advocate, Supreme Court, instructed by Kazi Shahabuddin Ahmed, Advocates-on-Record—Respondent No. 1.
Not represented—Respondent Nos. 2-6
 
Appeal No. 28 of 1995.
(From the judgment and order dated 19-1-95 passed by the High Court Division in Writ Petitioner No. 47 of 1995).
 
JUDGMENT
 
Md. Abdur Rouf J:
 
The appellant, an elected Member of Parliament, in a parliamentary by-election held on January 25, 1995, has preferred this appeal by leave against the judgment and order dated 19 January, 1995 passed in Writ Petition No. 47 of 1995 by a Division Bench of the High Court Division declaring that the acceptance of his nomination paper by the Returning Officer, respondent No. 4, as a candidate in that by-election was without lawful authority and is of no legal effect, as he was less than 25 years of age on the date of submission of the nomination paper on 1-1-95.
 
2. As per election schedule, notified on 12-12-94 by the Election Commission, the appellant along with respondent Nos. 1-3 filed nomination papers on January 1, 1995 to respondent No. 4, the Returning Officer.
 
3. On the following day at the time of scrutiny Respondent No.1 raised an objection(in writing before the Returning Officer alleging that the appellant did not then attain 25 years of his age as provided in Article 66(1) of the Constitution and as such he was not qualified for being a candidate in that election. The Returning Officer rejected the objection and accepted the appellant’s paper as a valid one.
 
4. The polling was scheduled to be held on January 25, 1995, but on January 7, 1995 respondent No. 1 moved Writ Petition No. 47 of 1995 and obtained a Rule Nisi calling upon the appellant and others as respondents to show cause as to why the acceptance of the appellant’s nomination paper by the Returning Officer should not be declared to have been done without lawful authority and Lobe f of no legal effect.
 
5. The appellant, as respondent No. 4, contested the Rule by filing an affidavit-in-opposition. He denied that he was less than 25 years of age on the date of filing the nomination paper and further asserted that he was aged about 25 years 3 months and 16 days on 1-1-95 even on the basis of his age recorded in the voters list, produced before the High Court Division by the writ petitioner. In support of his real date of birth his mother, Begum Helen Aktar, had sworn an affidavit before a Magistrate on 14-1-95 affirming that the appellant was born on September 26, 1967 at her father’s residence at Sherpur and the said affidavit was annexed as Annexure-2 to the affidavit-in-position.
 
6. The learned Judges of the High Court Division by the impugned judgment and order dated 19-1-95 made the Rule absolute as already noticed.
 
Thereafter operation of the impugned judgment and order was stayed by this Division and the poll, as per schedule, was held on January 25, 1995. The appellant secured 32,644 votes, his nearest rival secured 10,447 votes and respondent No.1 secured 3,473 votes. Accordingly the appellant was declared elected by the Returning Officer. He has entered upon his office upon taking oath.
 
7. Leave was granted on 13 April, 1995 to consider the following submissions:
 
“The petitioner now contends that it was stated in the petition and submitted before the High Court Division that the question of age of the petitioner being a disputed question of fact the same could not be decided in the writ jurisdiction, particularly, when the Returning Officer had decided the matter in favour of the petitioner, thereby leaving the question of age for decision, on evidence, by the appropriate authority, if and when raised after the poll.
 
It is further submitted that the petitioner having been elected in the by-election, it is for anyone who is interested to challenge such election in the Election Tribunal and agitate the question of age upon evidence at the trial therein, and that the High Court Division erred in assuming jurisdiction which according to the settled principle ought to be exercised by the Election Tribunal”.
 
8. Khondker Mahbubuddin Ahmed, learned Counsel appearing for the appellant, submitted that the Returning Officer in exercise of his authority under clause (3) of Article 14 of the Representation of the People Order, 1972, hereinafter referred to as President Order No. 155 of 1972, conducted the necessary enquiry and on being satisfied from the entries in the voters list, prepared on 9-9-89 and finally published on 15-2-90 produced by the writ petitioner, accepted the nomination paper as a valid one on being satisfied that the appellant was more than 25 years of age on 1-1-95. As such the learned Judges of the High Court Division erred in holding that the Returning Officer had acted without lawful authority in accepting the appellant’s nomination paper. The learned Counsel also referred to the affidavit sworn by the mother of the appellant and pointed out that the appellant challenged the authenticity and correctness of the school testimonial said to have been procured by the writ petitioner on 1-1-95 from the Headmaster of Longarpara High School to show that the appellant was born on 21-9-71. The learned Judges of the High Court Division, he submits, acted illegally in deciding such highly disputed question of age under the writ jurisdiction on mere affidavits.
 
9. The learned counsel Dr. Kamal Hossain, appearing for respondent No. 1, submitted that the High Court Division rightly held that the appellant did not attain 25 years of age on the date of submission of the nomination paper relying upon the most authentic documentary evidence, the Certificate issued on 1-1-95 by the Headmaster of the school wherefrom the appellant had passed the SSC. Examination in 1986, showing from the school record that his date of birth is September 21, 1971 and that the High Court Division rightly did not rely upon the affidavit of the appellant’s mother sworn on 14-1-95.
 
10. “Election” connotes the process of choosing representatives by electorates in democratic institutions. The election process starts from the Notification issued by the competent authority (in a parliamentary election or bye election, by the Election Commission) declaring election schedule and culminates in the declaration of result of election by a gazette notification. In the instant case the election process started with the Notification issued by the Election Commission on 12-12-94. In pursuance thereof the appellant and respondent Nos. 1-3 submitted their respective nomination papers on 1-1-95. On 2-1-95 at the time of scrutiny respondent No. 1 raised a dispute as to the age of the appellant. But the Returning Officer in exercise of his authority under clause (3) of Article 14 of President’s Order No. 155 of 1972 upon assigning reasons and upon apparent compliance with Article 14(3)(d)(iii) of President Order No. 155 of 1972, namely, that “the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll” disallowed the objection and accepted the nomination paper of the appellant as valid. Thereafter, the question as to whether the appellant had really attained the age of 25 years on 1-1-95 or not, undoubtedly became an election dispute. For proper adjudication of election dispute President’s Order No. 155 of 1972 provides under Chapter V a special forum and procedure. An election dispute can only be raised by way of an election in the manner provided therein. Where a right or liability is created by a statute providing special remedy for its enforcement such remedy as a matter of course must be availed of first. The High Court Division will not interfere with the electoral process as delineated earlier in this judgment, more so if it is an election pertaining to Parliament because it is desirable that such election should be completed within the time specified under the Constitution. In the instant case, a serious dispute as to the correct age of the appellant was raised before the High Court Division which was not at all a subject matter of decision on mere affidavits and certificates produced by the parties. It was not within the jurisdiction of the High Court Division to enter into a field of investigation as to the correct age of the appellant on 1-1-95, which would be appropriate for the Election Tribunal to investigate into on taking evidence, if and when raised after the poll. It is well-settled, vide the case of AFM Shah Alam vs Mujibul Huq and others, 41 DLR (AD) 68, that in election matters the jurisdiction of the High Court Division cannot be invoked under Article 102 of the Constitution except on a very limited ground of total absence of jurisdiction (coram non-judice) or malice in law for the purpose of interfering with any step taken in the election process, like, in the present case, acceptance of nomination paper. The Returning Officer was not coram non judice and there is no malice in law, expressly pleaded and established, so as to attract the jurisdiction of the High Court Division under Article 102 of the Constitution. The High Court Division acted without jurisdiction in interfering with a parliamentary election process.
 
The appeal is allowed without, however, any order as to costs.
 
Ed.