Mazharul Huq Vs. Returning Officer, Double Moorings, 27 DLR (AD) (1975) 11

Case No: Civil Appeal No. 4 of 1974

Court: Appellate Division ,,

Advocate: Faqeer Sahabuddin Ahmed,MR. SR Pal,,

Citation: 27 DLR (AD) (1975) 11

Case Year: 1975

Appellant: Mazharul Huq

Respondent: Returning Officer, Double Moorings

Subject: Election Matter,

Delivery Date: 1974-4-17

Supreme Court
Appellate Division
(Civil)
 
Present:
A M. Sayem, CJ.
A. B. Mahmud Hussain J
A. Jabir J
Ahsanuddin Chowdhury J
 
Mazharul Huq alias Mazharul Huq Chowdhury
…..………...Appellant.
Vs.
The Returning Officer and Circle Officer, (Dev.) Double Moorings, Chittagong, and others
……….……Respondents
 
Judgment
April 17, 1974.
 
Union Parishad and Paurashava (Election) Rules, 1973
Rule 21
When the number of candidates for election is equal to the number to be elected, no election is held and the remaining candidate or candidates are elected uncontested.
Rule 22
It relates to contested election. It provides that if the number of the contesting candidates for election as member or commissioner in a ward or constituency, as the case may be, is more than the required number of members or commissioners or that of the contesting candidates for election as Chairman or Vice Chairman id more than one, a poll shall be held.
 
Constitution of Bangladesh, 1972
Ar. 102(2)
Rule 21
In the circumstances referred to in r.21 no election is necessary—A voter as such cannot be held to be an ‘aggrieved’ persons as contemplated by Art. 102(2) of the Bangladesh Constitution.
 
Lawyers involved:
S. R. Pal, Senior Advocate, instructed by B.C. Panday—For the Respondent No. 4.
Faqueer Shahabuddin Ahmed, Attorney General instructed by Abdul Wadud Bhuiya, Assistant Attorney-General – Under Order LV rules of the Supreme Court (Appellate Division) Rules, 1973.
Respondent Nos. 1-3—Not represented.
 
Civil Appeal No 4 of 1974.
(On appeal from the Judgment and Order of the High Court Division, dated 19-12-73 passed in petition No. 493 of 1973).
 
JUDGMENT
 
Ahsanuddin Chowdhury, J.
 
1. This appeal by special leave, is against an order of a Bench of the High Court Division dismissing an application under article 102 of the Constitution.
 
2. Respondent No.14, Mr. Md. Abdullah and one Dr. Shafiqur Rahman, were the only contesting candidates for Chairmanship of North Halishahar Union Parishad. But before the poll, Dr. Shafiqur Rahman dies of an accident on 3-12-73 leaving behind Mr. Md. Abdullah as the sole surviving candidate. There­upon on 10-12-73 Mr. Abdullah Was declared elected Chairman of the Said Union to act in accordance with Rule 20A of the Union Parishad and Pauroshava (election) Rules, 1973 (hereinafter referred to as the Rules).
 
3. The appellant being a voter challenged under Article 102 of the Constitution, the order of the Returning Officer on the ground that poll being the legislative intent under Rule 20A, election should have been stopped when there was only one candidate in  the field after the unfortunate death of Dr. Shafiqur Rahman and fresh nomination papers should have been called for to enable the electorates to exercise their right of franchise by casting their votes for election of a suitable candidate as  Chairman.
 
4. The High Court Division summarily rejected the petition as it was of the view that having declared Mr. Md. Abdullah elected as Chairman of the Union Parishad, the Retur­ning Officer acted in accordance with the provisions of Rule 20A and as such he committed no illegality.
 
Leave was granted with a view to examin­ing the true meaning and scope of Rule 20A of the Rules which provides:—
 
"If a contesting candidate dies at any time before a poll is held, the poll shall be restricted to the remaining can­didates."
 
5. Mr. S.R. Pal, learned Counsel for the appellant contended that there was no scope for declaring Mr. Md. Abdullah, the survi­ving candidate elected uncontested inasmuch as Rule 20A clearly indicated a legislative in­tent of a poll to be held upon the death of a contesting candidate before the poll and since the question of a poll could not arise in a case where only one candidate was  left in the field, fresh nomination papers ought to have been called for to satisfy the legislative intent of holding a poll for election to the office of Chairman.  In support of his contention Mr. Pal submitted that in conformity with the general principle incorporated in the repre­sentation of the People's Order (President's Order No. 155 of 1972) a poll would be neces­sary in the event of a single contesting candi­date being left behind by reason of death of others. It was also submitted that Rule 20A did not indicate any intent to deviate from the principle of poll. On this point he laid stress upon the last word appearing in Rule 20A, namely, "candidates", which, it was said, obviously refers to persons in the plural and not a candidate in the singular. It was thus contended the Respondent No. 4 having been declared elected without calling for fresh nomination papers and without a poll, the legislative intent of a poll to be held was not satisfied and the Returning Officer obviously acted contrary to the legislative intent. Mr. Mozammel Huq, learned Counsel represented Respondent No.4 and supported the order of the High Court Division as well as the action of the Returning Officer.
 
6. We also heard the learned Attorney-General on the question raised by Mr. Pal. He argued that President's Order No. 22 of 1973 which is called the Bangladesh Local Government (Union Parishad and Paurashava) Order, 1973 (hereinafter referred to as Order No. 21) was made to provide for the consti­tution of Union Parishads and Paurashavas and for matters connected therewith and inci­dental thereto. In exercise of the power conferred by Article 24 of Order No. 22 the Government made rules known as the Union Parishad and Paurashava (Election) Rules, 1973. Election for the Constitution of Union Parishad and Paurashavas are to be conducted according to the provisions of Order No. 22 and the Rules framed thereunder. Another Order called the Representation of the People Order (President's Order No. 155 of 1972 (hereinafter referred to as Order No 155) was made to provide for the conduct of elec­tions to Parliament and matters connected therewith and incidental thereto. The learned Attorney-General pointed out that the scheme with respect to election to Parliament is differ­ent from that of election to local bodies and, as such, the proceeding relating to election to Parliament are also different from those rela­ting to election to local bodies. If there is a death of a validly nominated candidate for membership of Parliament, who has not with­drawn his candidature, the proceedings relating to that election shall be terminated and fresh proceedings shall be commenced. On that point he referred to clauses (1) and (2) of Article 17 of Order No. 155. Clause (1) of Article 17 provides that if a validly nominated candidate, who has not withdrawn his candi­dature dies, the returning Officer shall, by pub­lic notice, terminate the proceedings relating to that election. Clause (2) of Article 17 provides that where proceedings relating to an election have been terminated under clause (1), fresh proceedings shall be commenced in accor­dance with the provisions of this Order as if for a new election. There is no analogous or corresponding provision in Order No. 22 and no such provisions have been made in the Rules framed thereunder. It was, therefore, submitted that the principle laid down in Order No. 155 is not applicable to the election to local bodies as provided under Order No. 22 and the Rules framed thereunder.
7. It is now necessary to examine the re­levant Rules framed in exercise of the power conferred by Article 24 of Order No. 22 to see if, upon the death of one of the two contes­ting candidates before the poll as in the present case, fresh nomination papers are required to be called for to hold a poll for election to the office of Chairman.  Rule 12 provides for Notification of days of different stages of election. It reads as under:—
 
''(1) For the purpose of holding an elec­tion the Election Commission shall, by notification in the Official Gazette, appoint:
(a) a day, at least seven days after the date of such notification for the nomination of candidates:
(b) a day for the scrutiny of nomina­tion papers ;
(c) a day on or before which candida­ture may be withdrawn; and
(d) a day, at least fifteen days after the withdrawal day, for taking of the poll.
(2)  ...........................................
(3)..........................................
 
8. Rule 13 provides that the Returning Officer shall, as soon as may be after the publi­cation of a notification under Rule 12, give public notice in respect of each ward, or cons­tituency, Union or Paurashava inviting nomi­nations and specifying the time before which and the place or places at which nomination papers shall be delivered to him. Rule 18 pro­vides for scrutiny of nomination papers and Rule 19 provides that after scrutiny of the nomination papers the Returning Officer shall prepare and publish in a conspicuous place of his office, the list of validly nominated candi­dates in Form E. Rule 20 provides for with­drawal of candidature on or before the with­drawal date. The candidates who remain in the field after expiry of the withdrawal date are the validly nominated candidates who are entitled to contest the election. There may, however, be circumstances under which there may not be any contest the election and the said election is called the uncontested election. Rule 21 provides for uncontested election and it reads as under:—
 
''(1) If the number of candidates for election as member or commissioner in a ward or constituency, as the case may be, be equal to number of members to be elected from such ward or constituency, the Returning Officer shall declare such candidates to be duly elected.
(2) If the number of candidates for election as member or commissioner in a ward or constituency be less than the re­quired number, the candidates shall be dec­lared elected by the Returning Officer who shall arrange a second election for filling the remaining vacancy or vacancies.
(3) If there is only one candidate for election as Chairman, the Returning Officer shall declare the candidate to be duly elected
(4) If there is only one candidate for election as Vice-Chairman, the Returning Officer shall declare the candidate to be duly elected."

It may be mentioned that there arises no question of poll in uncontested election.
 
9. Rule 22 relates to contested election. It provides that if the number of the contesting candidates for election as member or commi­ssioner in a ward or constituency, as the case may be, is more than the required number of members or commissioners or that of the con­testing candidates for election as Chairman or Vice-Chairman is more than one, a poll shall be held. For these purpose, the Returning Officer shall publish in the office of the Union Parishad or Paurashava, as the case may be and in such places in the ward or constituency as the Returning Officer may consider nece­ssary, a list in Form F containing the names in alphabetical order at least one week before the date fixed for polling under clause (d) of Rule  12.
 
10. It is thus obvious that a poll is to be held where the number of contesting candidates for election is more than the required "number of members or commissioners or Chairman or Vice-Chairman. The question of poll does not, however, arise if the number of candidates for election is equal to the number required to be elected. In such cases, the Returning Officer will simply declare those candidates to be duly elected. In the instant case, there were, no doubt, two contesting candidates. If both the candidates were alive till the appointed date of poll, the poll had had to be held as provided under Rule 22.
 
11. The word ''poll" means giving and receiving votes. The question of holding poll arises under Rule 22 when the number of contesting candidates "exceeds the number of persons who are to be elected for the different offices. When, however, the number of can­didate in the field is   equal the number for election, that candidate is to be declared duly elected, as is required to be done under clause (3) of Rules 21. In the instant case, there was only one candidate in the field after the death of Dr. Shafiqur Rahman before the poll and the Returning officer consequently declared that candidate, viz, the Respondent No. 4, elected as Chairman.
 
12. Mr. Pal, however, laid stress on the word "candidates" appearing as the last word in Rule 20A and contended that fresh nomination papers ought to have been called for a poll being held when only one candidate was left in the field on the death of the other contesting candidate before the poll.  With a view to emphasis the requirement of poll reference was made also to Article 10(2) of Order No. 22 which provides that Chairman shall be elected by the voters of entire Union. There is no dispute that Chairman is to be elected by the voters of the entire Union provided the election is a contested one and poll is necessary. But this question does not arise if there is no occasion for contested election. It is, therefore, difficult to accept the conten­tion of Mr. Pal. It is true that the last word in Rule 20A is ''candidates" which refers to persons in the plural but the expression "the poll shall be restricted to the remaining can­didates" is highly significant. This expression clearly excludes the possibility and negatives the idea of introduction of a new candidate or candidates in the field through fresh nomi­nations. The provision in Rule 20A with the word "candidates" in plural, was made with, the intention of providing for a situation when after death of one of the contesting candidates before the poll, there still remain more than one contesting candidate in the field when the poll shall be restricted to the re­maining candidates. This was obviously done to do away with the necessity of terminating the proceedings already taken and commen­cing fresh ones, as is contemplated under Arti­cles 17 of Order No. 155 which relates to the election to the Parliament. Rule 20A, as argued by the learned Attorney General, is not attracted in the instant case which is cov­ered by clause (3) of Rule 21.
 
13. Mr. Pal next contended that the appe­llant is an aggrieved person within the meaning of Article 102(2) of the Constitution. In sup­port of his contention Mr. Pal argued that the appellant had indomitable desire to contest the election for the office of Chairman of his Union. But he did not set up his candidature and he allowed late D. Shafiqur Rahman to contest the election as he was their most po­pular leader. So, in consideration of the fact that Dr. Shafiqur Rahman would serve the cause of the appellant as well as of the general public of the Union, the appellant and some others like him divested themselves of their right to offer their candidature for the office of Chairman in favor of the candidature of Dr. Shafiqur Rahman. But Mr. Shafiqur Rahman having died before the poll they could not exer­cise their right of franchise due to Respondent No. 4 having been declared elected uncontested. Ignoring the demand of the voters to call for fresh nomination papers from the intending candidates. So, the right of franchise, a fun­damental right guaranteed by the Constitution, was denied to them,
 
14. On behalf of the Respondent it was argued that the appellant had no locus standi to move the High Court Division in the Writ Jurisdiction inasmuch as due to the death of one of the two contesting candidates before the poll the sole surviving candidate in the field was duly, declared elected. The Rules do not provide for holding a poll to enable the electorates of the Union to cast their votes in the above circumstances. It cannot, therefore, be said that the appellant was denied the right of franchise by an act of any individual. It is obvious that due to the schema of the law the voters did not have any opportunity to exer­cise their right of franchise.
 
In this view of the matter, it cannot be said that the appellant, a voter, is an "aggrieved" person and has locus standi to move the High Court Division in its Writ Jurisdiction under Article 102(2) of the Constitution.
 
In the result, the appeal is dismissed with­out any order as to costs.
 
Ed.