Case No: Civil Appeal No. 34 of 1988
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Syed Ishtiaq Ahmed,Mainul Hosein,,
Citation: 42 DLR (AD) (1990) 120
Case Year: 1990
Appellant: Mahmudun Nabi (Md)
Respondent: Mafizur Rahman Manju
Subject: Election Matter,
Delivery Date: 1989-12-14
Badrul Haider Chowdhury CJ
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Mahmudun Nabi (Md)
Mafizur Rahman Manju
The Local Government (Upazila Parishad and Upazila Administration Re-Organisation) Ordinance, 1982
Considering the evidence that has been adduced in this case it is found that the respondent was a party to a contract with the Upazila Parishad and his pecuniary interest had continued at the time when he contested the election and continued after the election. As such he comes within the mischief of law as a disqualified person.
Cases Referred to—
Md. Mostafa Hossain Vs. Md. Faruque and another BLD 1988 (AD) page 170; Australasia Bank Ltd. Vs. Messrs H.S. Mahmood Hassan Akbar and others PLD 1983 Karachi page 431; Thummala Rama Rao and others Vs. Chodagam Venkatesware Rao and others AIR 1963 A.P. 154.
Syed Ishtiaq Ahmed, Senior Advocate and Khondker Mahbubuddin Ahmed, Senior Advocate (Mahmudul Islam, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on- Record— For the Appellant.
Mainul Hosein, Advocate, Md. Joynul Abedin, (Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record— For the Respondent No.1.
Ex parte — Respondent Nos. 2-8.
Civil Appeal No. 34 of 1988.
(From the judgment and order dated 25.8.1988 passed by the High Court Division, Dhaka in Civil Revision No. 402 of 1988).
Badrul Haider Chowdhury CJ.
1. This appeal by Special leave is directed against the judgment and order passed by a single Judge of the High Court Division in Civil Revision No.402 of 1988.
2. The moot question in this appeal is whether the respondent being engaged in one on-going project of the Upazila Parishad as a contractor was disqualified to be a candidate for the post of the Chairman under section 6(2)(f) of the Local Government (Upazila Parishad and Upazila Administration Reorganisation) Ordinance, 1982.
3. Facts are as follows: —Respondent No.1 representing himself as M/s. M. Rahman and Associates got a contract on 24.12.1984 for construction of the Madhupur Upazila Building. When he filed the nomination paper for contesting the election the work was going on. On 24.4.85 nomination paper was filed and scrutiny was held on the following day. The appellant raised objection on the ground that respondent No.1 was disqualified but without any success. The election was held on 20.5.1985 and the respondent was elected.
4. His election was challenged by the appellant before the Election Tribunal. The Tribunal, however, did not accept the contention of the appellant that respondent No.1 was disqualified because of his alleged pecuniary interest in the contract. The Tribunal found that it was a partnership firm which was created by an instrument dated 13.9.78 and respondent No. 1 had sold away his share by a sale deed Ext. 'G’ dated 2.2.85 and thereby severed connection with the firm and contract. As such it was held that he was not disqualified.
5. On appeal, the appellate Court reversed the finding and the learned District Judge disbelieved the respondent's case that he had severed all connection with his partnership firm and found on evidence that the respondent still continued as partner and he secured his contract on such representation. Further, it was found that the respondent did not get release from the contractual obligation by the Upazila Administration. In this view of the matter it was held that respondent No.1 was disqualified from being a candidate and, accordingly, allowed the appeal.
6. In Revision the High Court Division took the view that respondent No.1 had sold away his share to his brother before he filed nomination paper and as such he was not disqualified from contesting the election.
7. Leave was granted to consider the question whether respondent No.1 was disqualified from contesting the election.
The question can be framed in a formula:
8. If it is a partnership, has the respondent been released from the contractual obligation? If it is a proprietorship he is disqualified from contesting the election under the law.
Certain facts are not disputed namely, that the respondent obtained the contract in the name of the firm M/s. M. Rahman and Associates. According to respondent, it was a partnership firm since 1978 but he severed his connection on 2.2.85. On the other hand, the appellant pointed out Ext. 6 the application of the respondent for obtaining the contract from the Upazila Administration and Ext.4 (a) whereby he opened the Bank Account with the Sonali Bank as the Proprietor of the Firm and exhibit 1 an affidavit before a Magistrate to the effect that he was the Proprietor of the firm and authorised the Bank to collect all his dues in connection with the contract business and deposit them into his account. The Appellate Court disbelieved the story that the Respondent No. 1 had sold away his share of the partnership firm by an unregistered deed dated 2.2.85. Now the question is whether it was the partnership or proprietory firm.
9. Mr. Syed Ishtiaq, the learned counsel appearing for the appellant, contended that if it was a Partnership firm then the General Rules and Directions for the Guidance of Contractors would be attracted which reads: —
10. And then he placed before the Court 'Form" A' of the Upazila Parishad (Contracts) Rules, 1986 and pointed out Rule 2 which reads as under: —
11. Mr. Ishtiaq Ahmed then referred to clause 15 which, inter alia, reads: -
"The contractor shall go through items and measurement prepared for final payment and file claims, if any, before he receives final bills. No claim or arbitration as per clause 22 shall be entertained, if no prayer is made before acceptance of final payment."
12. Then he referred to clause 20— Changes in constitution of firm, which says-
13. Mr. Ahmed contended that the evidence shows that the Upazila Parishad treated the Firm as proprietory Firm. See the deposition of P.W. 3
14. In cross-examination he, however, said that he had no papers to show that he did not release and he denied the suggestion that on 21.4.85 he released Mafizur Rahman but significantly he added-
15. Mr. Ishtiaq Ahmed contended that on such evidence the appellate Court below have rightly found that Mafizur Rahman has incurred disqualification for contesting the election.
16. Mr. Mainul Hosein, the learned counsel appearing for the respondent, contended that the partnership was severed after 2.4.85 and since then the respondent had no connection with the Firm and therefore the disqualification that has been mentioned in the enactment will not bring him within the mischief of law.
17. This Court in the case of Md. Mostafa Hossain Vs. Md. Faruque and another BLD 1988 (AD) page 170 considered this question of pecuniary interest that whether due to pendency of a bill after execution of work done as a contractor by the elected chairman it can be said that he had pecuniary interest in the affairs of the Upazila Parishad. It was observed-
18. In view of this pronouncement it is not necessary to consider any other decision. But a question of liability of partner has been raised. The case of Australasia Bank Ltd. Vs. Messrs H.S. Mahmood Hassan Akbar and others PLD 1983 Karachi page 431 may be considered. Where it was said when the creditors were not notified of dissolution any acknowledgement made by ex-partner shall be binding on the Firm and its partners.
19. Under section 32(3) read with section 72 of the Partnership Act, retiring partner continues to be liable for any subsequent act of any other partners which would bind the firm until the public notice as prescribed by section 72 is given. In the case of Thummala Rama Rao and others Vs. Chodagam Venkatesware Rao and others AIR 1963 A.P. 154 it was held—
20. Thus assuming that it was partnership firm and the respondent No.1 had severed his connection still his liability to the Upazila Parishad continues. This point is now well-settled that the retirement of the partner is not effective unless and until other partners agree to discharge him of possible liability and a public notice is given under section 72.
21. Thus the question remains again whether any pecuniary interest subsists for which the liability of the respondent continued.
22. Considering the evidence that has been adduced in this case we have no hesitation in coming to the conclusion that the respondent was party to a contract with the Upazila Parishad and his pecuniary interest had continued at the time when he was contesting the election and continued after the election as it transpires that he withdrew some security money after the election although the work was not finished yet. In this view of the matter we have no reasons to take a different view than that was taken by us in the case of Md. Mostafa Hossain Vs. Sikder Md. Faruque and another BLD 1988 (AD) 170 and accordingly have come to the conclusion that the High Court Division had been wrong in taking the view that respondent No. 1 had severed connection with the firm—proprietory or partnership—and as such he comes within the mischief of law as a disqualified person.
In the result, therefore, this appeal is allowed and the judgment and order of the High Court Division is set aside without any order as to cost.