Md. Ashaduzzaman Vs. Bangladesh, 11 MLR (AD) (2006) 191

Case No: Civil Petition for Leave to Appeal No. 705 of 2005

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Dr. M. Zahir,Mr. Mvi. Md. Wahidullah,,

Citation: 11 MLR (AD) (2006) 191

Case Year: 2006

Appellant: Md. Ashaduzzaman

Respondent: Government of Bangladesh

Subject: Election Matter,

Delivery Date: 2006-3-23

Supreme Court
Appellate Division
(Civil)
 
Present:
Syed JR Mudassir Husain CJ
MM Ruhul Amin J
Amirul Kabir Chowdhury J
 
Md. Ashaduzzaman
................ Petitioner
Vs.
Bangladesh, representedby the Secretary, Ministry of local Government, Engineering and Rural Development Bangladesh, Secretariat, Ramna, Dhaka and others ………......Respondents
 
Judgment
March 23, 2006.
 
Pouashava Ordinance, 1977
Section 10 (2)(g)
Disqualification of a candidate to contest in election on ground of being a bank loan defaulter.
Until finally adjudged as a bank loan defaulter or is admitted a bank loan defaulter a candidate for contesting in the election for the post of chairman of a pourashava cannot be treated as a bank loan defaulter merely because a money suit is pending in court. Accordingly the apex court dismissed the leave petition.
 
Lawyers Involved:
Dr. M. Zahir, Senior Advocate (Moksudul Islam, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record- For the Petitioner.
Rafique-Ul-Huq, Senior Advocate, (Faheemul Huq, Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record- For respondent No. 4.  
Not represented- Respondent Nos. 1-3.
 
Civil Petition for Leave to Appeal No. 705 of 2005
(From the judgment and order dated 16.05.2005 passed by the High Court Division in Writ Petition No.3179 of 2005).
 
JUDGMENT
 
MM Ruhul Amin J.
 
1. This petition for leave to appeal is directed against the judgment and order dated 16.05.2005 passed by a Division Bench of the High Court Division in Writ Petition No. 3179 of 2005 summarily rejecting the writ petition.
 
2. The writ petitioner filed the Writ Petition challenging the holding of office of Chairman, Jhalakati Pourashava by Respondent No.4 on the grounds, inter alia, that at the time of filing of nomination paper he was a bank loan defaulter and as such he was disqualified to file nomination paper and to get elected as Chairman of   Jhalakati Pourashava.
 
3. We have heard Dr. M. Zahir, the learned Counsel for the petitioner and Mr. Rafique-Ul-Huq, the learned Counsel for respondent No.4 and perused the judgment of the High Court Division and other connected papers.
 
4. The High Court Division while summarily rejecting the writ petition observed that on the selfsame matter another candidate for the office of Chairman filed Writ Petition No. 2677 of 2004 and the Rule issued by the High Court Division was ultimately made absolute and  challenging the judgment of the High Court Division, Civil Appeal No. 230 of 2004 was filed before the Appellate Division and the appeal was allowed and the judgment of the High Court Division was set aside holding that it is not possible to decide whether or not the respondent No. 4 is a bank loan defaulter as has been claimed by the present petitioner. The High Court Division observed that there is no admitted position that the respondent No.4 is a loan defaulter and merely because some suits are pending in the Court he cannot be treated as a bank loan defaulter.
 
5. Mr. Rafique-Ul-Haque, the learned Counsel for respondent No.4 has taken us through the judgment of this Division in Civil Appeal Nos.  229 and 230  of 2004  and submitted that in that judgment this Division observed that the claim of the Respondent No. 1 (present petitioner) that the appellant (present respondent No. 4) is a bank loan defaulter has been persistently denied by the appellant (present Respondent No. 4) and the matter is pending before the superior Court and thus "we do not find that there exists such a clear case capable to be decided at the micro level on the interpretation of the relevant law."
 
6. Mr. Huq next submits that only because a Money Suit is pending against the respondent No.4, the latter cannot be said to be a bank loan defaulter unless the bank obtains a decree against him. Mr. Huq further submits that the respondent No.4 has already paid up the principal amount he borrowed from the Bank.
 
In the above facts and circumstances of the case, we find no merit in the leave petition.
 
Accordingly, the petition is dismissed.
 
Ed.