Md. Jahangir Alam (Selim) Vs. Md. Hebjul Bari and others, II ADC (2005) 514

Case No: Civil Appeal No. 231 of 2003

Judge: Syed JR Mudassir Husain ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Abdur Rob Chowdhury,,

Citation: II ADC (2005) 514

Case Year: 2005

Appellant: Md. Jahangir Alam (Selim)

Respondent: Md. Hebjul Bari

Subject: Election Matter,

Delivery Date: 2004-8-3

Supreme Court
Appellate Division
(Civil)
 
Present:
Syed JR Mudassir Husain, CJ.
Mohammad Fazlul Karim, J.
MA Aziz, J.
Amirul Kabir Chowdhury, J.
 
Md. Jahangir Alam (Selim)
.........Appellant
Vs.
Md. Hebjul Bari and others
........Respondents
 
Judgment
August 3, 2004.
 
The Local Government (Union Parishad) Ordinance (LI of 1983)
Section 7(2)(f)
The appellant did not sign the contract for work as an individual contractor to be done for Union Parishad rather he signed a contract for and on behalf of the Union Parishad and as such the above provisions of the Ordinance cannot be made applicable in the facts and circumstances of the case. We are of the view that the appellant being the Chairman of the Project Committee will not derive any pecuniary benefit and the development work which was to be executed by the appellant as a Chairman for and on behalf of the Union Parishad through a Project Committee and as such there is no contract for work to be done for the Union parishad by myself, rather, the work is being done for the government who provided fund for the work.
 
Lawyers Involved:
Khondker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record - For the Appellant.
Abdur Rob Chowdhury, Senior Advocate, instructed by Zahirul Islam, Advocate-on-Record - For Respondent No. 1.
Not represented - Respondent Nos. 2-4.
 
Civil Appeal No. 231 of 2003
(From the judgment and order dated 13th April, 2003 passed by the High Court Division in Writ Petition No. 536 of 2003)
 
JUDGMENT
 
Syed JR Mudassir Husain CJ.
 
1. This appeal by leave at the instance of Md. Jahangir Alam (Selim) writ-respondent No. 4, a candi­date for election for the post of Chairman of No. 9 Kaimpur Union Parishad under Kashba upazila, District Brahmanbaria calls in question the legality of the order dated 13th April, 2003 passed by the High Court Division in Writ Petition No. 536 of 2003 making the Rule absolute declaring acceptance of the nomina­tion paper of the appellant as not legal and without lawful authority being violative of the pro­vision of Section 7 (2) (f) of the Local Government (Union Parishad) Ordinance, 1983.
 
2. The facts, relevant for the proper dispos­al of this appeal, are that the respondent No. 1 (writ-petitioner) filed the above writ-petition, stating to the effect that as a voter in Ward No. 9 of No. 9 Kaimpur Union Parishad he filed nomination paper as a candidate for Chairmanship of said Union at the election of to be held on 25-01-2003; that 6 (six) other candi­dates including appellant also filed nomination paper for the post of Chairman. The writ-peti­tioner-respondent No. 1 alleged that the nomination paper of the respondent No. 4 the appel­lant was declared valid in an illegal and malafide manner though it was brought to the notice of the Returning Officer that the appel­lant-respondent No. 4 having taken and advance of Tk. 20,000/- on 13-05-2003 for implementation of the development project of said Union and which was not done. So, he becomes disqualified under the provision of Section 7(2) (f) of the Local Government (Union Parishad) Ordinance, 1983.
 
3. The appellant as the writ-respondent No. 4 contested the Rule by filing affidavit-in-opposition, stating inter alia, that he as the Chairman of the Union Parishad was also the Chairman of the Project Implementation Committee consti­tuted for the construction of 'vegetable shed' and in the background of the said fact, he had no pecuniary interest in the affairs of the Union Parishad and as such he has not acquired any disqualification under the  provision under Section 7(2) (f) of the Ordinance arrived at an erroneous conclusion by the impugned judgment.
 
4. The High Court Division upon hearing the parties made the Rule absolute.
 
5. Mr. Khondker Mahbubuddin Ahmed, the learned Counsel appearing for the appellant, contended that the High Court Division having misconceived the scope and the ambit of provi­sion of Section 7(2) (f) of the Ordinance arrived at an erroneous conclusion by the impugned judgment
 
6. In elaborating the above contention, he pointed out that the provision of Section 7(2) (f) of the Ordinance envisages that a candidate for Chairman or member of the Union Parishad will be disqualified if the candidate is a party to a contract for work done or goods to be sup­plied to the union Parishad or has otherwise pecuniary interest in its affair or is a dealer in essential commodities appointed by the Government. He, therefore,  argued  that the High Court Division failed to appreciate that the works done with the fund of the Union Parishad and the value of such work not being exceeding Tk. 50,000/- the Union Parishad may itself execute the work through a Project Committee and in such a case there is no con­tract and as such there is no question of the Chairman of the Union Parishad being a party to the contract for work to be done for the Union Parishad as contemplated under the provision of Section 7(2) (f) of the Ordinance. He argued that in the instant case admittedly a fund of Tk. 50,000/- was provided by the Upazila Development  and  Co-ordination Committee from the money obtained by leasing out the bazar and it is mandatory to spend 15% of the money obtained by such leasing for the development of the bazar. Accordingly, the appellant as Chairman of the Project Committee signed a tripartite agreement with the Upazila Nirbahi Oficer and Upazila Engineer and in such view of the matter Khondker Mahbubuddin Ahmed emphatically argued that the High Court Division totally failed to apply their judicial mind in not considering that the appellant did not sign the contract as an individual to do any work for the Union Parishad rather he signed the contract on behalf of the Union Parishad, so the provision of Section 7 (2) (f) of the Ordinance has no manner of application in this case.
 
7. Mr. Abdur Rob Chowdhury, the learned Counsel appearing for the respondent No. 1, on the other hand, contended that the appellant admittedly withdrew a sum of Tk. 20,000/- on 13-05-2002 for implementation of development project namely construction of 'vegetable shed' at Mandabagh bazar within Kaimpur Union Parishad and it was required to complete the work within the financial year, 2000-2002, that is on 30-06-2002 but the appellant did not do any construction work. He contends that the respondent No. 4 (appellant) misappropriated or otherwise misused the said fund and for which he was also  asked by the Upazila Praukausali by its letter dated 18-02-2002 to immediately start the work but the appellant did not do so and thereby he was a defaulter of the outstanding amount  of Tk. 20,000/-. Mr. Chowdhury therefore argued that in such view of the matter provision of Section 7 (2) (f) of the Ordinance is very much attracted and as such the High Court Division rightly held that the nomination paper of the appellant was not properly  accepted by the  Returning  Officer even though written objection was filed by the respondent.
 
8. Mr. Rob Chowdhury has tried to argue that the appellant having accepted the advance of Tk. 20,000/- on 13-05-2002 as Chairman of the Union Parishad and non utilization of money amounts  to misappropriation of public money and as such the provision of Section 7 (2) (f) of the Ordinance is very much attracted.
 
9. Section 7 of the Union Parishads Ordinance, 1983 reads as follows:-
 
"7. Qualifications and disqualifications of Chairman and members of Union Parishads.-
 
(1) A person shall, subject to the provisions of sub-section (2), be qualified to be elected as, and to be, Chairman or member if-
(aa)...................................;
(a).....................................;
(c).....................................;
(d)....................................;
 
(2) A person shall be disqualified for election as, or for being, a Chairman or a member if-
(a).....................................;
(b).....................................;
(c).....................................;
(d).....................................;
(e) he holds  any full-time office of profit in the service of the Republic or of the Union Parishad or of any other local authority; or
(f) he is a party to a contract for work to be done for, or goods to be supplied to, the Union Parishad concerned, or has otherwise any pecuniary interest in its affairs, or is a dealer in essential com­modities appointed by the Government;…..
 
10. We have heard the submissions made by the learned Counsel of the parties. In the instant case, we find from the record that a fund of Tk. 50,000/- was provided by the Upazila Development and Coordination Committee out of the money obtained by leasing out the bazar. It was mandatory to spend 15% of the money from the said amount for the development of bazar. Admittedly, the appellant a Chairman of the Union Parishad became the Chairman of the Project Committee and signed a tripartite agree­ment with the Upazila Nirbahi Officer and Upazila Engineer for the implementation of the said development work. In such view of the matter, we find that the appellant did not sign the contract for work as an individual contrac­tor to be done for Union Parishad rather he signed a contract for and on behalf of the Union Parishad and as such the above provi­sions of the Ordinance can not be made applica­ble in the facts and circumstances of the case. We are of the view that the appellant being the Chairman of the Project Committee will not derive any pecuniary benefit and the develop­ment work which was to be executed by the appellant as a Chairman for and on behalf of the Union Parishad through a Project Committee and as such there is no contract for work to be done for the Union Parishad by himself, rather, the work is being done for the government who provided fund for the work.
 
11. Under the above facts and circum­stance's of the case, we are of the view that the Returning Officer rightly found the nomination of the appellant as a valid piece of document. The High Court Division in our view totally misdirected in understanding the implication of the above provisions of Section 7(2)(f) of the Ordinance and as such the findings and deci­sions arrived at by the High Court Division cart not be sustained in law.
 
12. Having regard to the aforesaid facts and circumstances of the case, we find substance in the appeal. In the result, the appeal is allowed without any order as to cost. The impugned judgment and order dated 13-04-2003 passed in Writ Petition No. 536 of 2003 are hereby set aside and the rule so issued is hereby recalled.
 
Ed.