Mia Lutfi Hossain Khasru and others Vs. Bangladesh and others, 55 DLR (AD) (2003) 58

Case No: Civil Review Petition Nos. 27 and 28 of 2000

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. Md. Amir Hossain,,

Citation: 55 DLR (AD) (2003) 58

Case Year: 2003

Appellant: Mia Lutfi Hossain Khasru and others

Respondent: Bangladesh and others

Subject: Review Petition, Procedural Law,

Delivery Date: 2002-1-22

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mahmudul Amin Choudhury CJ
Mainur Reza Chowdhury J
Mohammad Fazlul Karim J
KM Hasan J
 
Mia Lutfi Hossain Khasru and others
……………….Petitioner
Vs.
Bangladesh and others
..……………..Respondents
 
Judgment
January 22, 2002.
 
The Code of Civil Procedure, 1908 (V of 1908)
Order XLVII rule 1
Review is by no means an appeal in disguise whereby an erroneous decision is reheard or corrected but lies on patent error…………………………(5) 
 
Lawyers Involved:
Md. Aftab Hossain, Advocate‑on‑Record‑For the Petitioners.
Amir Hossain, Advocate‑on‑Record‑For the Respondents.
Not Represented‑The Respondents.
 
Civil Review Petition Nos. 27 and 28 of 2000.
 (From the judgment and order dated 5th March 2000 passed by the Appellate Division in Civil Petition for Leave to Appeal Nos. 1260 and 1261 of 1999 respectively).
 
JUDGMENT
 
Mohammad Fazlul Karim J.
 
These review petitions against the impugned order dismissing civil petitions out of judgment and order of the High Court Division dated 7‑7‑1999 passed in Writ Petition Nos. 1787 and 2259 of 1998 heard and disposed of together as common question of law and fact were involved therein. The writ petitioner in Writ Petition No. 1787 of 1998 was a Ward Commissioner of newly created Lalmohan Pourashava who has challenged the final notification dated 9‑6‑1998 of the Delimitation officer relating to delimitation of 3 Wards into 9 Wards of the Pourashava alleged to have been done Without taking into consideration territorial unity, distribution of population, administration convenience, without any enquiry and obtaining any opinion of the local people in violation of section 21 of the Pourashava Ordinance, 1977. The Deputy Secretary (Poura) also did not consider the report along with Mouza map showing distribution of the population of the said Pourashava and that the variation of population was more than 10% in most of the Wards. The writ‑petition in Writ Petition No. 2259 of 1998 challenged the notification dated 2‑7­ 1998 relating to delimitation of 3 wards into 9 wards of Chowmuhani Pourashava stating that while delimitating the wards the Delimitation Officer did not take into consideration variation of population which was more than 10% from one ward to another and that without informing the Chairman delimitation was made in violation of section 21 of the Ordinance and that the report of Delimitating Officer which was sent to the Ministry of Local Government and Co-operative was arbitrary and that it was prepared at the instance of some interested quarters.
 
2. The High Court Division on perusal of materials on record found that the population Census of 1991 showed 3% increase of population per year and the question of variation of population, taken in the other petition is a disputed question of fact which cannot be resolved in writ jurisdiction and that section 21(1) of the Ordinance is not mandatory but directory and that the variation of 10% of population are to be taken into consideration as far as practicable depending on facts of each case and that there was no violation of the said provision in respect of the Pourashava concerned.
 
3. Mr. Md. Aftab Hossain, the learned Advocate‑on‑Record appearing for the petitioners, submits that the issue involved whether variation of more than 10% population will defeat the purpose of the law in course of delimitation of wards as contemplated in section 21 of the Pourashava Ordinance and, as such the impugned judgment is Ward No 4 of liable to be reviewed to secure ends of justice.
 
4. Section 21 of the Pourashava Ordinance has been designed to reallocate the area and delimit­ate the Wards with emphasis on the distribution of population as far as practicable taking into consideration the territorial unity and the administration convenience. The provision has provided the procedure to be followed and considered by the authority concerned. This section is in keeping with the spirit of the Constitution that the States shall encourage local Government institution composed of representatives of the area concerned enabling more to effectively participate in the election process exercising their franchise right. The variation of 10% population is to be taken into consideration as far as practicable depending on the increase of population per year in the particular territory. This Division has observed: 
 
“It is consistent to this Division that section 21 of the Pourashava Ordinance, 1977 is directory and not mandatory. It is within the province of the Delimitation Officer to take into consideration distribution of population as far as practicable vis‑ a‑ vis."  
 
5. In view of the above directory nature of the provision of section 21 of Pourashava Ordinance, 1977, there is no substance in the submission of the learned Advocate‑on‑Record for the petitioners. Moreover, the submission of the learned Advocate­-on‑Record has already been answered and the same could not be ground for review, for a review is by no means an appeal in disguise whereby an erroneous decision is reheard or corrected but lies on patent error but no such patent error could be pointed out. The submission of the learned Advocate‑on‑Record is grievance against the judgment which have been noticed and considered in the impugned judgment while disposing of the petitions for leave to appeal.
 
These petitions are accordingly, dismissed.
 
Ed.