Case No: Civil Appeal No. 42 of 1989
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Dr. Kamal Hossain,,
Citation: 42 DLR (AD) (1990) 116
Case Year: 1990
Appellant: Nur Mohammad
Respondent: Badruddoza Chowdhury
Subject: Election Matter,
Delivery Date: 1989-11-15
Supreme Court of Bangladesh
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
M.H. Rahman, J.
A.T.M. Afzal, J.
November 15, 1989.
The Local Government (Union Parishads) Ordinance, 1983
Default in the payment of any loan has been made a disqualification to be elected or to be nominated to the election of a Chairman of Union Parishad. Failure to pay any instalment makes the borrower defaulter in payment of the loan and the law says such person is disqualified for holding office of the Chairman………………..(15 & 17)
Cases Referred to —
40 DLR (AD) 10; Sheikh Abdus Sabur Vs. Returning Officer, 41 DLR (AD) 30.
Dr. Kamal Hossain, Senior Advocate, instructed by Kazi Shahabuddin Ahmed, Advocate-on- Record— For the Appellant.
Sk. Afzalur Rahman, Advocate, instructed by Md. Ataul Hoque, Advocate-on-Record— For the Respondent No.1
Not represented—Respondent No.2.
Civil Appeal No. 42 of 1989
(From the judgment and order dated 10.1.1989 passed by the High Court Division, Jessore Bench, Jessore in Writ Petition No. 44 of 1988).
Badrul Haider Chowdhury, J.
1. This appeal by special leave is directed against the judgment and order dated 10.1.89 passed by the High Court Division in Writ Petition No.44 of 1988.
2. Leave was granted by this Court in the following terms: —
"It was urged that respondent No.1 was a defaulter on the date of nomination of the candidate i.e. 10th January, 1988, on the date of election i.e. 10th February, 1988, on the date of publication of the result i.e. 15.6.1988 and on the date of taking oaths on 10.7.1988. It is an admitted fact that first installment of payment of loan was due on 31st March, 1987 but respondent No.1 did not pay that installment. The High Court Division discharged the Rule after holding that the repayment of the loan means repayment of the entire loan and not a part or instalments of the loan and respondent No.1 had time to pay the loan upto 31st March, 1990, the last installment being fixed by the Bank for payment of the loan. The High Court Division held that respondent No. 1 was not disqualified for election of Chairman under section 7(2)(g) of Ordinance No. 41 of 1983. The learned Counsel for the petitioner has contended that the view taken by the High Court Division is erroneous and that the High Court Division ought to have held that the word 'loan' in section 7(2)(g) includes part or installment of the total loan. Points merit consideration. Leave is granted."
3. There were three contesting candidates in the election of Sriula Union Parishad which was held on 10.2.88. Respondent No.1 Badruddoza Chowdhury was declared elected and Gazette notification to the effect was made on 15.6.88.
4. Appellant who was a voter of the said Union Parishad filed the aforesaid Writ Petition No. 44 of 1988 by way of quo warranto before the High Court Division and rule was issued on the respondent No.1 to show cause under what authority he claimed to hold the office of the Chairman since he has defaulted in paying the loan of Taka 10,000/-taken by him from Bangladesh Krishi Bank, Satkhira Branch. Thus he became a defaulter within the meaning of section 7(2)(g) of the Union Parishad Election Ordinance.
5. Certain facts are not disputed namely, the amount of loan was Taka 10,000/-and the repayment of the loan was to be started from 31st March, 1987 and end by four equal instalments on 31st March, 1990 but the respondent No.1 defaulted in paying the first and 2nd instalments which were due from 31.3.87 and 31.3.88. The question was, whether the High Court Division was correct that the repayment of the loan means repayment of the entire loan and not a part of the installment of the loan and since the respondent had time to pay the entire loan by 31st March, 1990 he was not disqualified for election under section 7(2)(g) of the Ordinance.
6. Dr. Kamal Hossain, learned Counsel appearing for the appellant, contended that the word 'loan' in section 7(2)(g) includes part of or instalment of the total loan.
7. Mr. Sk Afzalur Rahman, the learned Advocate for the respondent No.1, contended that the Bank had not declared him defaulter and therefore he would not come within the mischief of section 7(2)(g) of the Ordinance. Mr. Afzalur Rahman has placed before us the loan agreement concluded between the Bangladesh Krishi Bank, Satkhira Branch and the respondent No.1 which shows that he obtained the loan on stipulation that it will be repaid by four instalments, the first instalment coming due on 31.3.87, second instalment due on 31.3.88, 3rd instalment on 31.3.89 and the last instalment becomes due on 31,3.1990. Clause II of the Agreement reads as under: —
“(১১) যদি আপনি/আপনারা নির্ধারিত তারিখের মধ্যে ব্যাংকের প্রাপ্য টাকা পরিশোধ না করেন তবে অনাদায়ী টাকার জন্য উহা সম্পূর্ণ পরিশোধ বা আদায় পর্যন্ত উক্ত অনাদায়ের তারিখ আপনাকে/আপনাদিগকে অতিরিক্ত সুদ দিতে হইবে। এই অতিরিক্ত সুদ এক বৎসর পর্যন্ত খেলাপের জন্য ১% হারে, ১ বৎসর হইতে ২ বৎসর পর্যন্ত ১.৫% (দেড়) হারে এবং ঊর্ধ্ব সময়ের জন্য ২% হারে পরিশোধ করিতে হইবে ।”
8. Section 7(2)(g) provides for qualification and disqualification of the Chairman and member of the Union Parishad and sub-section (2) details the disqualifications for election or nomination as, or for being, a Chairman or a member if he has defaulted in repaying any loan taken by him from any specified bank within the time allowed by the bank thereof vide clause (g). The explanation added as under:-
"Explanation.—For the purposes of clause (g), "specified bank" means the Sonali Bank, the Agrani Bank and the Janata Bank constituted under the Bangladesh Banks Nationalisation Order, 1972 (P.O. No. 26 of 1972), the Shilpa Rin Sangstha established under the Shilpa Rin Sangstha Order, 1972 (P.O. No. 128 of 1972), the Bangladesh Shilpa Bank established under the Bangladesh Shilpa Bank Order, 1972 (P.O. No. 129 of 1972), the House Building Finance Corporation established under the House Building Finance Corporation Order, 1973 (P.O. No. 7 of 1973), the Krishi Bank established under the Krishi Bank Order, 1973 (P.O. No. 27 of 1973), the Investment Corporation of Bangladesh established under the Investment Corporation of Bangladesh Ordinance, 1976 (XL of 1976), the Rajshahi Krishi Unnayan Bank established under the Rajshahi Krishi Unnayan Bank Ordinance, 1986 (LVIII of 1986), and the Rupali Bank Limited-".
9. Mr. Sk. Afzalur Rahman, the learned Advocate, contended that the expression "within the time allowed by the bank" is vague and can be considered both for and against the respondent and in such case the benefit should be given to the respondent. The contention, in other words, is that since the bank has not declared him as defaulter, the expression "within the time allowed by the bank" should be construed liberally and the loan becomes due on 31st March, 1990 and therefore the High Court Division was correct in taking the view.
10. The contention needs scrutiny for which each of the enactments referred to in the explanation needs consideration. The Bangladesh Shilpa Rin Sangstha Order, 1972 (P.O. 128 of 1972) provides for credit facilities and other assistance to industrial concern. Section 32 empowers the Sangstha for asking the borrower forthwith to repay the bank in certain circumstances and specially when clause (b) is attracted which says when the industrial concern has failed to comply with the terms of any agreement with the Sangstha in the matter of the loan or (c) there is a reasonable apprehension that the industrial concern is unable to pay its debts or may go into liquidation. In such circumstances section 33 empowers the Sangstha to move the District Judge having jurisdiction for certain relief including order for payment of the loan. Section 34 provides that when the industrial concern makes default in payment or otherwise fails to comply with the terms of its agreement the Sangstha may sell or realise the property, etc. to secure its liability to the Sangstha. Section 35 provides that such sum due to the Sangstha shall be recoverable as arrears of land revenue but such sum shall not be recovered unless fifteen days' notice has first been given by the Sangstha to the debtor and that" upon his so paying every instalment on or before the due date the recovery will be suspended but that it will otherwise proceed as to the entire sum outstanding in case of any default in any instalment including the first". (Emphasis added).
11. Thus it is clear so far as Shilpa Rin Sangstha is concerned any default in payment of any instalment entitles the Sangstha for recovery of the entire debt. The position is same with the Shilpa Bank established under the Shilpa Bank Order, 1972 (P.O. 129 of 1972). Section 33 provides for the recovery of entire debt "by reason of the breach of any condition of any agreement" and section 35 provides for recovery of the entire sum outstanding in case of any default in any instalment including the first."
12. In House Building Finance Corporation Order (P.O. 7 of 1972) sections 26 says—
"When a borrower or his surety makes default in repayment beyond 24 monthly instalments or otherwise fails to comply with the terms of the agreement........., the Corporation notwithstanding the provisions of any other law may, without the intervention of any Court, sell any property pledged, mortgaged, hypothecated or assigned by the borrower or his surety, to the Corporation by way of security."
Now Bangladesh Krishi Bank Order (P.O. No. 27 of 1973) section 21 reads:-
"Where any agriculturist who is liable to the Bank under any agreement makes default in repayment or otherwise fails to comply with the terms of his agreement with the Bank, such default or failure not being due to natural calamity, the Bank, may, subject to any rules made in this behalf, take over the management of the concern of the agriculturist and sell or realise any property pledged, mortgaged, hypothecated or assigned by the agriculturists to secure his liability to the Bank."
13. Investment Corporation of Bangladesh Ordinance, 1976 provides for calling for payment before the agreed period if the person has failed to comply with the terms of the agreement with the Corporation. Sections 17 and 18 of the Rajshahi Krishi Unnayan Bank's Ordinance, 1986 read with section 19 provides for the same mode of recovery in the case of default of any instalment.
14. As has already been noticed in this case the borrower-respondents have taken on clear terms as to the schedule of the repayment by four instalments beginning from 31.3.87. When he contested the election he filed his nomination paper on 10.1.88 by that time he defaulted for payment on the first instalment. He was declared elected on 15.6.88 though by that time he clearly defaulted in second instalment. Interesting enough, however, after being elected it appears that he repaid debt by three instalments on 22.8.88, 23.8.88 and 11.9.88 though by that time he has already been a defaulter.
15. Such default in the payment of any loan has been made a disqualification to be elected or to be nominated to the election of a Chairman of Union Parishad. The reason is that the legislature wanted to eliminate such person from holding a public office because such person, who was defaulter would not be considered suitable for performing the public duly. This was considered in two decisions of this Court in 41 DLR (AD) 48 and 40 DLR (AD) 10. It was further elaborated in Sheikh Abdus Sabur Vs. Returning Officer 41 DLR (AD) 30. It was observed: —
"The main object of the 'disqualification' provision appears to be the furtherance of economic and financial interest of the State and though it has not been expressly stated in the statute it is clear from the nature of duties and responsibilities of the persons constituting these local bodies. It is a common knowledge mat for non-payment of loans taken from State-owned banks, the national economy has been badly affected. One of the functions of Union Parishad is to help collection of government dues, rent and taxes. Besides, members of the Union Parishad are directly involved in financial transaction in the course of their official duties and running the affairs of the Union Parishad. The fact that these persons are financially handicapped by being 'defaulters' will embarrass them in the discharge of their duties."
16. Dr Kamal Hossain has correctly formulated the law that failure to pay any instalment of the loan should be taken as defaulter in view of the nature of duties of such public office.
17. Considering the aforesaid decisions and the stipulations in the terms and agreement in the aforesaid enactment the irresistible conclusion is that failure to pay any instalment makes the borrower defaulter in payment of the loan and the law says such person is disqualified for holding office of the Chairman.
In the result, therefore, this appeal is allowed and the judgment and order of the High Court Division is set aside without any order as to cost.