Mamudul Haque Chowdhury Vs. The District Judge, Chittagong & others, 38 DLR (AD) (1986) 8

Case No: Civil Appeal No. 34 of 1985

Judge: F.K.M.A. Munim,

Court: Appellate Division ,,

Advocate: Muhammad Jamiruddin Sarkar ,Mr. Fazlul Karim,,

Citation: 38 DLR (AD) (1986) 8

Case Year: 1986

Appellant: Mamudul Haque Chowdhury

Respondent: District Judge, Chittagong

Subject: Election Matter,

Delivery Date: 1985-4-25

Supreme Court
Appellate Division
(Civil)
 
Present:
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
 
Mamudul Haque Chowdhury
..……………..Appel­lant
Vs.
The District Judge, Chittagong & others
……………….Respondents
 
Judgment
April 25, 1985.
 
The Local Government (Union Parishad) (Amend­ment) Ordinance, 1983
Section 29
Respondent no. 3 not filling an election petition before the Election Tribunal after result of the election was declared on 7th of June 1984, he is not authorized to exercise his right of appeal granted under section 4 of the Amending Ordinance (per Fazle Munim CJ)………….(10)
In an ejection matter the person against whom specific allegation of mal-practices has been brought must be prompt in denying the allega­tion by filing written statement. On his part simple denial of the allegation may be sufficient since the burden of proof of the allegation lies upon the petitioner. (Per Shahabuddin Ahmed J.)…………(21)
 
Lawyers Involved:
Md. Fazlul Karim, Senior Advocate instructed by Sharifuddin Chaklader, Advocate-on- Record—For the Appellant.
Jamiruddin Sircar, Advocate instructed by Wahidullah, Advocate-on-Record— For the Respondent No. 3.
Not represented—For the Respondent Nos. 1-2 & 4.
 
Civil Appeal No. 34 of 1985
(From the Judgment and Order dated 4.3.85 passed by the High Court Division. Dhaka in writ petition No. 20 of 1985)
 
JUDGMENT
 
Fazle Munim CJ:
 
1. This appeal arises from Writ Petition No. 20 of 1985 decided by a Bench of the High Court Division, Dhaka (Mr. Justice Abdul Matin Khan Chowdhury and Mr. Justice Amin-Ur-Rahman Khan) on 4th March 1985.
 
2. Facts of the case are: On 28th December 1983 the election of the Chairman of Ketharia Union Parishad No 6 (Ka) within Banskhali Upazila, District Chittagong was in which respondent No. 3 was declared elected as Chairman on 23rd January 1984. Appellant and respondent No 3 contested the election. The Union Parishad consists of wards, Ward No. 1 having two voting centres and the other two Wards had only each. Appellant secured 2,202 votes, respondent No. 3 secured 2,462 votes. Respondent No.3 was, therefore, declared Chairman.
 
3. Appellant filed Election Petition on February 1984. On 9th April 1984 respondent No.3 appeared before the Tribunal prayed for adjournment of the case for filing written statement. Time was allowed respondent No.3 did not file any written statement. Prayers for adjournments were made by respondent No. 3 on 19th April 1984 and 29th April 1984. As respondent No. 3 did not file the written statement the Tribunal granted time for doing so till 8 May 1984. From that date respondent No. 3 did not take any steps in the matter and accordingly the Election Tribunal fixed date for exparte hearing of the election case on 9th May 1984. As respondent No. 3 did not take any step in the case, the Election Tri­bunal took up the case for exparte hearing. Appellant who appeared before the Election Tribunal was examined and in his examination-in-chief he stated the illegalities and irregularities committed by respondent No. 3 as well as the persons in-charge of conducting the election of Ward No. 3.
 
The Election Tribunal, respondent No. 2 allowed the election case and declared the election held in Ward No 3 of the aforesaid Union Parishad as invalid. Further, he direc­ted for holding of a fresh election in the ward within 30 days from the date. The election of respondent No.3 as Chairman was also declared invalid.
 
4. On 20th May 1984 the Election Com­mission directed for holding of fresh election in Ward No.3 in pursuance of the order passed by respondent No. 2 on 9th May 1984. Accordingly on 7th June 1984, election was held in Ward No.3. Respondent No 3 participated in the election. Appellant secured 1,103 votes and respondent No.3 got 413 votes.
 
5. On 20th June 1984 the result of the fresh election of the Union Parishad declar­ing the appellant as Chairman of the Union Parishad, was published in Dhaka Gazette, Extra-ordinary. On 24th June 1984 the appel­lant was sworn in as Chairman and since then he has been conducting the affairs of the Parishad. On 9th July 1984 the Local Government (Union Parishads) (Amendment) Ordinance, 1984, Ordinance No.XLlV of 1984 was promulgated and published in the Gazette. By this Ordinance section 29 of the Local Government (Union Parishads) (Am­endment) Ordinance, No. LI of 1983 was amended as follows:
 
''2. Amendment of section 29, Ord. LI of 1983.- In the Local Government (Union Parishads) Ordinance, 1983 (LI of 1983), in section 29, for sub-section (3) the following shall be substituted, namely :
(3) Save as provided in sub-section (4), the decision of an Election Tri­bunal on an election petition shall be final
(4) Any person aggrieved by a decision of the Election Tribunal may, within thirty days of the announce of the decision, prefer an appeal to the District Judge within whose jurisdiction the election in dis­pute was held; and the decision of the District Judge on such appeal shall be final:
Provided that in the case of a deci­sion announced before the commence­ment of the Local Government (Union Parishad)) (Amendment) Ordinance, 1984 (XLIV of 1984) such appeal may be preferred within thirty days of such commencement.''
 
6. On 14th July 1984 respondent No.3 in pursuance of the aforesaid provisions of the amended Ordinance preferred an appeal before the District Judge, Chittagong who constituted the election Appellate Tribunal.
 
In his memorandum of appeal respondent No. 3 did not state that a fresh election in Ward No.3 had already been held on 7th June 1984 and that he had also participated in the election. On 24th February 1985 the Election Appellate Tribunal, respondent No.1 allowed the appeal filed by respondent No.3 and set aside the order dated 9.5.84 passed by the Election Tribunal, respondent No. 2, and sent back the case on remand to it for fresh disposal of the case in accordance with law.
 
7. Appellant moved the High Court Division under Article 102 of the Constitution read with Constitution (Partial Revival) (Second) Order, 1985, and the Chief Martial Law Administrator's Order No. 1 of 1985. It was contended by him that the order passed by the Election Tribunal on 9th May 1984 had already been executed on 7th June 1984 by holding a fresh election and that he had been declared as the elected Chairman of the Union Parishad. Further, respondent No.3 was given sufficient opportunity to file his written statement in the Election Tribunal case on as many as five times but he did not take any step. On 4th March 1985 High Court Division summarily rejected the petition.
 
Being aggrieved the appellant moved this Court and obtained special leave to appeal to consider the contention that the High Court Division erred in law in applying the Ordi­nance No. X.LIV of 1984 inasmuch as it did not give any retrospective effect and as such the decision of the Election Appellate Tribunal was without jurisdiction.
 
8. It appears that respondent No. 3 did not file an election petition against the ex-parte order of the Election Tribunal passed on 9th May 1984 directing the holding of. a fresh election in Ward No.3. Election Com­mission, it appears, directed the holding of election in Ward No.3 within 8th June 1984. Accordingly election in Ward No. 3 was held on 7th June 1984 in which respondent No.3 participated. Though appellant was declared elected Chairman no election petition was filed by respondent No.3 against this election.
 
9. From a reading of the unamended revisions of section 29 of the Ordinance, appears that a person who felt aggrieved by decision of an Election Tribunal had the allowing remedy
 
"(1) An election Tribunal shall, upon receipt of an election petition, given notice thereof to all the contesting candi­dates at the election to which the petition relates.
(2) Subject to any rules made in this behalf, the Election Tribunal shall, after giving the contesting candidates an opp­ortunity of being heard and taking such evidence as may be produced before it, mike such orders as it may think fit."
 
These two sub-sections remained but sub-sec­tion (3) of section 29 which provided,
 
"Save as provided in sub-section (4), the decision of an Election Tribunal on an election petition shall be final" was substituted by new sub-sections (3) and (4) as quoted above, was added by the amending Ordinance No. XLIV of 1984.
 
10. From the facts as stated above, it appears that respondent No. 3 did not file an election petition before the Election Tri­bunal after the results of the election held in Ward No.3 was announced on 7th June 1984. Had he filed such election petition and was aggrieved by the decision of the Election Tribunal he could have exercised his right to appeal under the provisions of Ordinance No. XLIV of 1984. In consequence of his omission to do so he could not exercise his right of appeal granted by sec­tion 4 of the amending Ordinance. Prior to making this omission respondent No.3 also did not file an election petition before the Election Tribunal when it passed an order on 9th May 1984 directing the holding a fresh election in ward No.3. If respondent No.3 wants to exercise his right of appeal against this exparte order it would be time barred under the provisions of section 4. Moreover, according to provisions of section 3 the exparte order passed by the Election Tribunal has become final. In such a predica­ment, that is, there being no election peti­tion against the exparte order of Election Tribunal passed on 9th May 1984 which has become final and there being also no elec­tion petition against the election held on 7th June 1484, respondent No.3 cannot claim to prefer an appeal under the provisions of section 4 of section 29 of the Local Government (Union Parishads) Ordinance 1983 as amended by Ordinance No. XLIV of 1984.
 
11. For the reasons stated above it appe­ars that the learned Judges were wrong in not declaring that the Election Appellate Tribunal had no jurisdiction to entertain the appeal preferred by respondent No.3 agai­nst the exparte order of the Election Tribunal.
 
12. In the result, the appeal is allowed. Judgements and Orders of the High Court Division and the Election Appellate Tribu­nal are set aside and that of the Election Tribunal is restored.
\
There will, however, be no order as to costs.
 
Shahabuddin Ahmed J.
 
I have gone thro­ugh the judgment proposed to be delivered by my Lord, the Chief Justice. I agree that the anneal should be allowed and the Elec­tion Tribunal's decision should be restored, but as my reasonings are a little different from those of my Lord, the Chief Justice, I am giving my reasons separately.
 
14. Facts of the case have already been stated in detail in the judgment of my Lord, the Chief Justice. Appellant and respondent No, 3 along with another contested & election for the office of Chairman of the Katharia Union Parishad which was held on 28-12-83. Respondent No. 3 was declared elected on 23 January 1184 and he also took oath of office, but on 7 February 1984 the appellant filed an election petition before the Election Tribunal and Munsif at Banshkhali, Chittagong, bringing some allegation of malpractices against respondent No.3, particularly an allegation that respondent No. 3 had canvassed for votes and entertained voters within the prohibited area of the Polling Booths. On re­ceipt of notice of the election petition respon­dent No.3 catered appearance and took as many as three adjournments for filing written statement in answer to the allegations made against him, but did not file any written statement. On the date finally fixed for the purpose that is, on 8 May 1984, he did not file written statement nor he took any step in the matter whereupon the Tribunal fixed the matter for exparte hearing on the following day, and on that day the Tribunal allowed the election-petition exparte and set aside the election of the Union Parishad in part, that is to say, the Tribunal set aside the election held in Ward No. 3 only, maintained the results of the election held in the other two Wards, and directed fresh election in Ward No. 3 so that the result of the election held in the other two Wards could be amalgama­ted with the result of the fresh election to be held. In pursuance of this decision, fresh election was held in Ward No. 3 on 7 June 1984 and the Returning Officer after consoli­dating the results of election of all the three Wards of the Union declared the appellant elected Chairman. His election was notified in the official gazette and he took oath of his office on 24 June 1984.
 
15. On 9 July 1984, section 29 of the Lo­cal Government (Union Parishad) Ordinance, 1983 was amended and by this amendment sub-section (4) was inserted in section 29. This sub-section provides for appeal against any decision of that Election Tribunal within 30 days from the date of decision; and in the case of any decision given before this amend­ment, it is provided that appeal might be filed against such a decision also within 30 days from the date of the amendment. Res­pondent No. 3, in pursuance of this amend­ment, filed an appeal on 14 July 1984 before the District Judge and Appellate Election Tribunal, challenging the exparte-decision of the Tribunal dated 9 May 1984 taking the ground that the exparte decision was impro­per having been given without giving him any opportunity to defend himself in the election-petition and further that in the said exparte decision there was no finding by the Tribunal that the election was materially affected by non-compliance with any rules or violation of any mandatory provisions of law.
 
16. The Appellate Election Tribunal heard the appeal in presence of both the parties and, by his judgment dated 25 February 1985, allowed the appeal, set aside the exparte de­cision of the Tribunal along with the fresh election held in Ward No.3 and directed re­hearing of the election-petition on a finding that respondent No.3, the elected Chairman, had not been given any opportunity to file written statement against the election-peti­tion. The appellant challenged this order of the Appellate Election Tribunal by a writ petition, but the learned Judges of the High Court Division summarily rejected the peti­tion. As against this order of the High Court Division leave was granted by us on 24 March 1985 to consider, among their things, whether the amended law got any retrospec­tive effect in respect of a decision of the Election Tribunal which has been implemen­ted before the amendment.
 
17. Mr. Fazlul Karim, learned Advocate for the appellant, addressed us both on questions of law and fact particularly; he contended that the amended provision of the Ordinance, namely sub-section (4) of section 29 has got no retrospective effect in respect of a decision of the Tribunal which has already been implemented. He has pointed out that the exparte decision of the Tribunal dated 9 May 1984 setting aside the election in Ward No.3 and directing a fresh election there was executed by holding a fresh election on 7 June 1984 whereupon the appellant took oath of office. Contention of Mr.Fazlul Karim is that though a decision of the Trib­al announced before the amendment could appealed against, but when such a decision has already been implemented, appeal against it is not contemplated by the amendment which, he argues, contemplates only decisions which, though announced earlier than the amendment, have not yet been implemented. The exparte-order dated 9 May 1984 having been implemented, he argues, it stands out-side the ambit of the subsequent Amendment. To appreciate this point section 29, both before and after the Amendment, is quoted below:
 
Before amendment.
 
''29. Trial of election petitions.— (1) An Election Tribunal shall, upon receipt of an election petition, give notice there­of to all the contesting candidates at the election to which the petition rela­tes.
(2) Subject to any rules made in this behalf, the Election Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidences as may be produced before it, make such orders as it may think fit.
(3) The decision of the Election Tribunal on an ejection petition shall be final and shall-not be called in question in or before any court".
 
After amendment.
 
"29. Trial of election petitions.— (1) An Election Tribunal shall, upon receipt of an election petition, give notice thereof to all the contesting candidates at the election to which the petition relates.
(2) Subject to any rules made in this behalf, the Election Tribunal shall, after giving the contesting candidates an op­portunity of being heard and taking such evidence as may be produced before it, make such orders as it may be think fit.
(3) Save as provided in sub-section (4), the decision of an Election Tribu­nal on an election petition shall be final.
(4) Any person aggrieved by a deci­sion of the Election Tribunal may, within thirty days of the announcement of the decision, prefer an appeal to the District Judge within whose jurisdiction the election in dispute was held and the decision of the District Judge on such appeal shall be final ;
Provided that in the case of a decision announced before the commencement of the Local Government (Union Parishads) (Amendment) Ordinance, 1984 (XLIV of 1984), such appeal may be preferred within thirty days of such commence­ment."
 
18. It should be noted that under the unamended law a decision of the Tribunal on an election petition, whatever might have been the decision, was final and could not have been challenged in any Court. Keeping in view this position, the law was amended which not only made the Tribunal's decision appealable in prospective cases, but also it provides for appeal against a decision announ­ced before the amendment. Had the Legis­lature intended that a decision which has al­ready been implemented before the amendment would remain unaffected by the amendment, it would have expressed this intention in clear specific words. In the absence of any such express provision in the amendment, it is very difficult to read in it a line of demarcation between a decision which has been implemen­ted and one which has not been so implemen­ted. What I find in the language of sub-section (4) of section 29 is that under the unamended law, all decisions of the Tribunal, even if they were illegal or grossly improper, remained immune from any challenge and that in order to enable a person aggrieved by such decisions the amendment was brought about and this Amendment in its second part, expressly pro­vided for appeal against all these decisions. A Legislature which got power to enact a law also got power to enact retrospectively; in sub section (4), this intention as to retrospectivity of effect has been expressed in express and clear language. As such the contention of Mr. Fazlul Karim in this respect is rejected.
 
19. Mr. Fazlul Karim next contends that in the fresh election held in Ward No. 3, res­pondent No. 3 participated and as such he is estopped from challenging the election. Con­tention of respondent No.3 is that he did not participate in the fresh election nor is he interested in the fresh election; secondly, whether he participated or not in the fresh election, he got statutory right, under the amended law, to challenge the earlier decision of the Tribunal setting aside his election exparte against which there was no provision for appeal at that time. That decision, it is contended, is the root of the trouble. Election held in Ward No. 3, it should be noted, is not an election for the whole of the Union, but it is an election in part as the results of election held in the other two Wards of the Union were maintained and kept intact so as to be amalgamated with the result of the fresh election in the disputed Ward. In such an election no fresh candidate can con­test, no nomination paper is necessary and the election is limited to the existing candidates namely, those who had participated in the election which have been maintained by the Tribunal. As in the instant case, election in Ward No. 3 shall be held as a matter of course in order to complete the process of election started on 28-12-83. In such an election a candidate, who already participated in the election of the other two Wards, got no option but to participate, and in case he does not participate, he will face the consequence; or it may be that in his votes already obtained in the undisturbed part of the election i.e. in other two Wards in this case, exceed the hig­hest number of votes obtained for the whole of the Union by another candidate he will be declared elected even if he did not participate in the disputed fresh election. In these circu­mstances, participation of respondent No. 3 in the fresh election in Ward No. 3 is imma­terial and in the eye of law he is a candidate in respect of the whole of the Union. His participation in the fresh election in Ward No. 3 will not stand in his way to challenge the exparte decision setting aside the main election held on 28.12.83.
 
20. Mr. Fazlul Karim next contends that after the fresh election was held in Ward No. 3, the respondent did not challenge it by filing an election petition. Yes, he could have filed an election petition if he had been aggrieved by that fresh election; but he got no grievance against that election, for this election might have been held peacefully and lawfully. But his grievance being the earlier exparte decision against him, his right to appeal therefrom, by subsequent law, is not affected by non-filing of election petition against the fresh election. I am, therefore, clearly of the view he appeal against the Tribunal's exparte decision dated 9 May 1984 is quite maintainable. Now I shall enter into the merits of this appeal.
 
21. The Appellate Election Tribunal found that respondent No.3, elected Chairman, was not given any opportunity to defend himself by filing a written statement. This finding, I am afraid, is not supported by materials on record. The election petition was filed on 7 February and notice thereof was issued on the following day fixing 29 February for appearance. Respondent No. 3 appeared before the Tribunal long before that day; he appeared on 8 February in response to a separate notice to show cause why temporary injunction would not be issued by the Tribunal restraining him from functioning as Chairman till disposal of the election petition. In that connection he showed cause and this matter took about eight weeks and ultimately temporary injunction was issued. Respondent filed an application on 9 April, 1984 for adjournment to file written statement against the election petition; his application was allowed and the matter was burned to 19 April, 1984; but he did not written statement on 19 April and prayed for further time which was also granted till 29 April 1984. On that day also he did not file any written statement but prayed for another adjournment which was granted till May 1984. On that date neither did he file any written statement nor did he take any steps, Thereupon the Tribunal set the matter for exparte decision on the following day, and accordingly, on that day, 9-5-84, the Tribunal examined the petitioner (appellant), perused his election petition and found the allegations against respondent No. 3 to be true. In the circumstances, the order allowing the election petition exparte is perfectly justified. In an ejection matter the person against whom specific allegation of mal-practices has been brought must be prompt in denying the allega­tion by filing written statement. On his part simple denial of the allegation may be sufficient since the burden of proof of the allegation lies upon the petitioner. Failure of respondent No. 3 to submit written state­ment, considered along with the evidence adduced by the appellant, provided sufficient materials for disposing of the election peti­tion exparte.
 
22. Mr. Jamiruddin Sircar, learned Advo­cate for the respondent, contends that in the exparte order there is no finding that the election was materially affected. It is true that under rule 48 of the Election Rules, the Election Tribunal shall not declare an election void unless he finds that the election has been materially affected by non-compliance of any provisions of the law, but in the impugned decision no such finding has been given in specific words. But from the evidence adduced by the petitioner-appellant which remained unchallenged, the allegation in the election petition and dialatory tactics adopted by respondent No. 3, it is clearly found that the election was materially affected in Ward No. 3 by certain acts of respondent No. 3 in violation of rules. In view of this position the Tribunal's decision directing fresh election in Ward No.3 should not have been interfered with in appeal. The observation of the Election Appellate Tribunal that respondent No.3 was not given any opportunity to file written statement got no basis whatever. Thus, on merit, I find that the Tribunal's decision should not have been reversed. This should have been corrected by the High Court Division by hearing the writ petition on merit.
 
In the result, the appeal is allowed. The order of the Election Appellate Tribunal as well of the High Court Division is set aside and that of the Tribunal is restored.
 
Ed.