Nazimuddin Molla (Md) Vs. Government of Bangladesh, 45 DLR (AD) (1993) 115

Case No: Civil Appeal No. 34 of 1992

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. T. H. Khan,,

Citation: Government of Bangladesh

Case Year: 1993

Appellant: Nazimuddin Molla

Respondent: Government of Bangladesh

Subject: Election Matter,

Delivery Date: 1993-3-29

Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed, CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
 
Nazimuddin Molla, (Md)
..................Appellant
Vs.
Government of the People's Republic of Bangladesh and others
................Respondents
 
Judgment
March 29th, 1993
 
Local Government (Union Parishads) Ordinance, 1983
Section 7(2)(f)
Disqualification to act as Chairman— The Rule Nisi obtained by respondent No.5 with an order of stay of operation of the order of cancellation of his dealership was allowed to be discharged for non-prosecution 9 days after he took oath of office as the chairman. He is holding on sometimes to his dealership and sometimes to his Chairmanship accordingly as it suits him. This is a typical instance of approbation and reprobation which cannot be allowed.                                                     … (13)
 
Lawyers Involved:
TH Khan, Senior Advocate (MA Wahhab Miah, Advocate with him) instructed by Md. Nawab Ali, Advocate-on-Record-For the Appellant.
Khondker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-record -For Respondent No. 5.
Ex parte - Respondent Nos. 1-4, 6 and 8.
 
Civil Appeal No. 34 of 1992.
(From the Judgment and Order dated 4.5.92 passed by the Hich Court Division in Writ Petition No 1454 of 19921)
 
JUDGMENT
 
Mustafa Kamal J.
 
1. This appeal by leave is from the Judgment and order of the High Court Division dated 4.5.92 dismissing summarily the appellant's Writ Petition No. 1454 of 1992 wherein the appellant prayed for issuance of a Rule Nisi calling upon respondent No. 5 Milon Md. Bachhu to show cause under what authority he claims to hold or purports to hold the office of Chairman of Rajapur Union Parishad, District Jhalakati.
 
2. The brief facts are that the nomination paper for the election of Chairman of the said Union Parishad was filed on 7.12.91, the scrutiny took place on 8.12.91 and the nomination paper of respondent No. 5 was declared valid. The election was held on 30.1.92 and respondent No. 5 was elected as Chairman of the said Union Parishad. The result was published in the official Gazette on 2.3.92 and respondent No. 5 took oath of office on 10.3.92. He has been functioning as Chairman thereof ever since.
 
3. The appellant is an inhabitant and voter of the said Union Parishad and it is his case that respondent No. 5 was appointed a Palli ration dealer in essential commodities for the same Union Parishad by an order dated 3.5.89 and that he was still working as such dealer when he took oath of office and so he was disqualified to contest the election and was also disqualified to continue in the office as Chairman in terms of section 7(2)(of) of the Local Government (Union Parishads) Ordinance, 1983 which is as follows:
 
“7. Qualifications and Disqualifications of Chairman and Members of Union Parishads.-
     ……………………………………………………………
(2) A person shall be disqualified for election or nomination as, or for being, a Chairman or a member if.
(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 pecuniary interest in its affairs, or is a dealer in essential commodities appointed Government."
 
4. The dealership of respondent No. cancelled by an order dated 25.8.91 against which respondent No. 5 filed Writ Petition No. 1982 of 1991 and obtained an order of stay on 9.9.91 in the following terms, inter alia:
 
“……..Pending hearing of the Rule, lot the operation of impugned Annexure F dated 25.8.91 be stayed so far it relates to the petitioner vide serial No. 5 and the respondents are directed to allow the petitioner to continue as dealer under die license granted earlier."
 
5. The said Writ Petition No. 1982 of 1991 was discharged for non prosecution on 19.33.99
 
6. In dismissing the appellant's instant writ petition summarily the High Court Division took the view that the Rule Nisi in Writ Petition No.1982 of 1991 having been discharged for non-prosecution on 19.3.92, the order of cancellation of dealership came into effect from 29.8.91 and if respondent No. 5 had been continuing as a dealer he would be taken to be doing so without appointment by the Government.
 
7. Leave was granted to appellant's submission that upon obtaining an order of stay on 9.9.91 the order of cancellation of dealership dated 25.8.91 was kept in abeyance and therefore on the date of filing nomination paper on 7.12.91 and the acceptance thereof on 8.12.91 respondent No. 5 was a disqualified person within the meaning of section 7(2) (f) of the said Ordinance. The High Court Division, it was urged, erred in law in holding that the order of cancellation of dealership came into effect from 25.8.91 upon the Rule being discharged for non‑prosecution on 19.3.92. It was the appellant's submission that the order cancellation of dealership came into effect from 19.3.92 when the Rule was discharged for non‑prosecution and not from 25.8.91, as held by the High Court Division.
 
8. Mr. TH Khan, learned Advocate for appellant, submits that in the face of these facts very filing of nomination paper and acceptance thereof were initially void, the election of respondent No. 5 as Chairman was void, the oath of office taken by him was void and his continuance in office is also without lawful authority.
 
9. Mr. Khandker Mahbubuddin Ahmed, learned Advocate for respondent No. 5, submits on the other hand that on 9.9.91 when the respondent obtained an order of stay in Writ Petition No. 1982 of 1991, the Committee which appoints Palli ration dealers met at a meeting and appointed Messrs M A Malek and Abdul Majid as dealers of the concerned Union Parishad. So, in spite of an order of stay in his favour respondent No. 5 ceased to be a dealer "appointed by the Government". Mr. Ahmed frankly concedes that it is not material whether respondent No. 5 was actually dealing in essential commodities during the relevant period because the law of disqualification is confined to the fact as to whether he "is a dealer in essential commodities appointed by the Government" and not whether he was actually dealing with it.         
 
10. While the concession has been rightly made, it is difficult to accept the submission of Mr. Ahmed. When the High Court Division stayed the operation of the order of cancellation of licence, respondent No. 5 did not cease in law to be a dater in essential commodities "appointed by the Government". His initial appointment in 1989 which was cancelled by the impugned order dated 25191 was revived by the order of stay. Two other dealers may have been appointed in the meantime by the relevant Committee but respondent No. 5 continued in the eye of law as a dealer appointed by the Government because of the order of stay.   
 
11. Mr. Ahmed next submits that on 9.12.91 the Government suspended the Palli rationing system with effect from 16.12.91 upto 29th February, 1992 and abolished the Palli rationing system altogether by a Gazette Notification dated the 23rd April, 1992. But these are developments subsequent to the filing and acceptance of nomination paper of respondent No. 5 on 7.12.91 M 8.12.91 respectively. As such the very acceptance of nomination paper of respondent No. 5 on 8.12.91 was illegal.
 
12. The High Court Division palpably took an absurd view that as the Rule Nisi was discharged for non‑prosecution on 19.3.92, the order of cancellation came into effect from 25.8.91. Such a view is not only incorrect but is also subversive of the authority of the High Court Division in stay matters. Granting of an order of stay by the High Court Division means the continuance of the previously existing state of affairs and until the order of stay is vacated or varied or until the Rule Nisi is disposed of the order under challenge has absolutely no effect. The effect of the view taken by the High Court Division will be that from 9.9.91 to 19.3.92 any violation of the Courts order of stay will be of no consequence, which is a totally unacceptable situation. Respondent No. 5 continued to be a dealer in essential commodities appointed by the Government from 9.9.91 upto 19.3.92 and his election, taking of oath of office and functioning as Chairman during "is period was wholly illegal.
 
13. There is another aspect to this matter. Respondent No. 5 challenged the cancellation of his dealership and obtained the order of stay which means that he asserted and succeeded in remaining as a dealer in essential commodities. Now he turns back and says that the order of stay was of no avail to him. The Rule Nisi obtained by him was allowed to be discharged for non‑prosecution on 19.3.92, 9 days after he took oath of office. He is holding on sometimes to his dealership and sometimes to his Chairmanship accordingly as it suits him. This is a typical instance of approbation and reprobation which cannot be allowed.
 
For all the above reasons we rind that the Judgment and order of the High Court Division cannot be sustained. The appeal is therefore, allowed without any order as to costs. It is decreed that respondent No. 5 is holding or purporting to hold the office of Chairman of Rajapur Union Parishad, District Jhalakati without lawful authority.
 
Ed.