Mahmudun Nabi (Md) Vs. Mafizur Rahman Manju, 42 DLR (AD) (1990) 120

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

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury CJ
Shahabuddin Ahmed J
M.H. Rah­man J
A.T.M. Afzal J
 
Mahmudun Nabi (Md)
……….….....Appellant
Vs.
Mafizur Rahman Manju
......................Respondents
 
Judgment
December 14,1989.
 
The Local Government (Upazila Parishad and Upazila Administration Re-Organisation) Ordinance, 1982
Section 6(2)(f)
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.
 
Lawyers Involved:
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).
 
JUDGMENT
 
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: —
 
"1. In the event of the Tender being sub­mitted by a firm, it must be signed separately by each member thereof, or in the event of the absence of any partner it must be signed on his behalf by a person holding a Power of Attorney authorising him to do so.
 
2. Receipts for payments made to a firm must be signed by the several partners, except in the case of well known and recognised firms, and except where the contractors are described in their tender or contract as a firm."
 
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: —
 
"2. In the event of the tender being submit­ted by a firm, it must be signed separately by each member thereof, or in the event of the ab­sence of any partner, it must be signed on his behalf by a person holding a power of attorney authorising him to do so, such power of attor­ney to be produced with the tender and save in the case of a firm carried on by one member of a joint family it must disclose that the firm is duly registered under the Partnership Act, 1932."
 
11. Mr. Ishtiaq Ahmed then referred to clause 15 which, inter alia, reads: -
 
"The security deposit of the contractor shall not be refunded before the expiry of one year af­ter the issue of the certificate, final or otherwise, of completion of works. But if in the opinion of the Chairman, half of the security deposit is suf­ficient to meet all the liabilities of the contrac­tor under this contract, half of the security de­posit will be refundable after the expiry of 6 months and the remaining half after one year of the issue of the said certificate of the comple­tion."
"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-
 
"In the case of a tender by partners any change in the constitution of the firm shall be forthwith notified by the contractor to the Parishad for its information."
 
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
 
“মোঃ শহিদুল্লাহ “নিদর্শক ৬-ক-এ দেখা যায় যে এম, রহমান এন্ড এসোসিয়েট প্রোপ্রাইটার ফার্ম  হিসাবে ফরিদপুর জেলা পরিষদে তালিকাভুক্ত ছিলেন। ............ নির্বাচনের পূর্বেই এই কাজটি শুরু হয়েছিল। এই কাজটি এখনও হয়নি। নির্বাচনের আগ পর্যন্ত জনাব মফিজুর রহমান এই কাজটি করেন। আমি এম, রহমান এন্ড এসোসিয়েট এর চুক্তির দায় দায়িত্ব হতে আমি মফিজুর রহমানকে অব্যাহতি দেই নাই।”
 
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-
 
"নির্বাচনের পর সিকিউরিটি  মানির একটি ড্রাফট মাত্র মফিজুর রহমান নিজে তুলেছেন। তাছাড়া অন্যসব টাকা খালেদুর রহমান সাহেব তুলেছেন ।” 
 
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-
 
"A bill for payment of money on account of some work done is not payable as a matter of course, but it requires to be examined, scruti­nized and then passed by an order of sanction by the appropriate authority, in this case by the Upazila Parishad of which the claimant is him­self the Chairman. As the bill was submitted af­ter its claimant was elected chairman, the entire work of examination, scrutiny, verification and sanction was left to be done by the Upazila Pari­shad with the claimant himself as its head. He is in a position to influence the clearance of the bill. Even if he does not preside over the meet­ing of the parishad while dealing with the bill, his very position is sufficient to influence other members of the Parishad, or they may them­selves feel embarrassed in examining the bill of their chairman. Bill for payment of money is certainly a pecuniary interest of the claimant. Had the bill been scrutinised and passed before his election but only the actual payment was yet to be made, then probably a case could have been made out to say that he got no more any pecuniary interest in the matter. The learned counsel next argued that the expression "has otherwise any pecuniary interest" contemplates an interest other than an interest in connection with any contract for work to be done, but it re­fers to an interest independent of any contract. The principle of 'ejusdem generis', origin from or belonging to same class, learned counsel con­tends, is not applicable to this phrase" otherwise pecuniary interest." The learned Additional At­torney-General, on the other hand, contends that the expression" he has otherwise any pecuniary interest" includes any interest whether it is relat­ing to a contract or is independent of any con­tract. Reading the disqualification clause pecuni­ary interest, as referred to, is an interest of any kind whether it is in connection with the con­tract or is independent of it, for the law provides that a person having any pecuniary interest in the affairs of the Parishad is debarred from seek­ing election, or from acting, as chairman. The High Court Division is, therefore, found to have correctly interpreted the law and come to the conclusions that the appellant is a party to a contract for a work to be done or has otherwise pecuniary interest in the affairs of the Upazila Parishad, and as such he has got no authority to hold the office."
 
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—
 
"If a retiring partner who has not given no­tice in the mode specified under section 72, wants to escape liability for any subsequent acts on behalf of the firm, it can only be on the ba­sis of some other rule of law and not on the ground that public notice was given in a manner different from that prescribed by section 72. The rule that makes a retiring partner liable for acts done on behalf of the firm after retirement is based on estoppel, because the persons deal with it in the belief that all the partners of the firm still continue; but when the third parties in fact knew that some of the partners have in fact re­tired from the partnership, there is no scope for the application of the rule of estoppel to make the partners who had already retired liable for the subsequent acts on behalf of the firm."
 
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.
 
Ed.