Rafiqul Alam (Md) Vs. Mustafa Kamal, 42 DLR (AD) (1990) 137

Case No: Civil Appeal No. 82 of 1989

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: S.R. Pal,Mr. Fazlul Karim,,

Citation: 42 DLR (AD) (1990) 137

Case Year: 1990

Appellant: Rafiqul Alam

Respondent: Mustafa Kamal

Subject: Election Matter,

Delivery Date: 1990-2-8

 
Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed, CJ.
M.H. Rahman, J.
A.T.M. Afzal, J.
Mustafa Kamal, J.
Latifur Rah­man, J.
 
Rafiqul Alam (Md)
..………………… Appellant
Vs.
Mustafa Kamal and ors
..………………… Respondents
 
Judgment
February 8, 1990.
 
The Local Government (Union Parishad) Ordinance, 1983
Section 26
Section 26 of the UP Ordinance has put a clear bar to determination of an election dispute by any court except the Election Tribunal. Secondly, the whole scheme of the election law is such that no dispute as to election can be raised at any intermediate stage, but it may be raised only after conclusion of the whole election process. This means that Civil Court's jurisdiction is impliedly excluded; it is therefore clear that the learned Single Judge wrongly held the suit to be maintainable. The election held on the strength of the temporary injunction made in the suit got no leg to stand upon……………………(12)
 
Cases Referred to:
A.F.M. Shah Alam and others, 41 DLR (AD), 6; Secre­tary of State Vs. Mask & Co., 44 C.W.N. 709; Wolverhampton New Waterworks Co. Vs. Hawkesford (6 C.B.N.S. 336); Neville Vs. London Express Newspaper (1919A.C.368); Monir Ahmed Khan Vs. Bozlu Mia, 1988 BLD 241; Jalaluddin Ahmed Vs. Matiur Rahman Khan, 41 DLR, 77; Mostafa Kamal Vs. B.D. Habibullah & ors, 41 DLR 197; Habibur Rahman Vs. Election Commission, 40 DLR 459; Haji Sultan Ahmed Vs. Abdul Jalil, 40 DLR 512; N.P. Ponnu Swami Vs. Returning Officer, AIR 1952 S.C., 64; Mohinder Singh Vs. Chief Election Commissioner, AIR 1978 S.C. 851; Inderjit Barua Vs. Election Commission of India, 1984 SCR, 1911; A.K.M. Hasanuzzaman Vs. Election Commission 1 SCR 493; Election Commissioner of India Vs. Shivaji, 1984 1 Supreme Court Cases 277.
 
Lawyers Involved:
S.R. Pal, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record—For the Appellant.
Md. Fazlul Karim, Senior Advocate, instructed by M. Nowab Ali, Advocate-on-Record— For Respondent No.1
Not represented—Respondent Nos. 2 & 3.
 
Civil Appeal No. 82 of 1989.
(From the judgment and order dated 6.8.89 passed by the High Court Division, Rangpur Bench in Civil Revision Case No. 196 of 1988).
 
JUDGMENT

Shahabuddin Ahmed, CJ.
 
1. The question raised in this appeal by special leave is whether a civil suit is maintainable over an election dispute for the determination of which a separate forum has been created by a special law, namely the Local Govern­ment (Union Parishad) Ordinance, 1983, briefly the UP Ordinance. All the courts below namely, the Assistant Judge, the Additional District Judge and a Single Judge of the High Court Division answered the question is the affirmative. The learned counsel for the appellant contends that the concurrent deci­sion of those courts has been made in disregard to the judgment of this Court in the cases of A.F.M. Shah Alam and others, reported in 41 DLR (AD), 68 and also in misconstruction of all relevant Election Laws, in particular, section 26 of the UP Ordinance, which provides that an election dispute may be deter­mined only by an Election Petition before the Tribu­nal created thereunder.
 
2. Facts leading to this question are as fol­lows:
 
An election was to be held on 10 February 1988 for the office of Chairman of Kolkonda Union Pari­shad of Gangachara Upazila, Dist-Rangpur and nom­ination papers were called for. Respondent-Plaintiff filed his nomination paper but it was rejected by the Returning Officer by an order dated 11 January 1988 on the ground that he was a defaulter for non­payment of a loan taken by him from the Janata Bank; and there having been only one nomination paper left, Appellant-defendant was declared elected uncontested by the Returning Officer. Respondent preferred an appeal against the rejection of his nomi­nation paper to the Nirbahi Officer, but the latter dis­missed his appeal whereupon he moved the Election Commission. The Election Commission, by an or­der dated 16 January 1988, directed the Returning Of­ficer to accept the nomination paper of the respon­dent. It is alleged that in spite of communication of this order by telephone, the Returning Officer did not accept the respondent's nomination paper, and conse­quently, the order of the Returning Officer declaring the appellant "elected uncontested" stood. This un­contested election was published in the Official Gazette but before he could enter upon his office, the respondent filed a suit, O.C. Suit No.4 of 1988, in the Court of Munsif (now Assistant Judge) of Gangachara Upazila challenging the appellant's uncontested election and prayed for cancellation of the un-contested election, for a direction upon the Returning Officer to accept his nomination paper and also for a mandatory injunction for holding an election afresh. The plaintiff-respondent simultaneously filed an ap­plication for temporary mandatory injunction for giving all those reliefs. The learned Assistant Judge, by her order dated 18 February, 1988 issued a tempo­rary mandatory injunction granting these reliefs namely, the Returning Officer was asked to cancel the uncontested election of the appellant, to accept the plaintiff’s nomination paper and to hold an elec­tion accordingly. This order was challenged unsuc­cessfully before the District Judge in Misc. Appeal No.14 of 1988 and then in Civil Revision No.196 of 1988 before the High Court Division. In obedi­ence to this temporary mandatory injunction the Re­turning Officer cancelled the appellant's election, accepted the plaintiff’s nomination paper and held a fresh election on 14 September 1989 in which the appellant also participated. Result of the election was that the appellant was defeated by the respondent who was declared elected and upon his election hav­ing been published in the Gazette he entered upon his office as Chairman of the Union Parishad on 16 November 1989. The appellant, however, challenged the High Court Division's order (dated 6 August 1989 in Civil Revision No. 196 of 1988) by which the trial Court's injunction was upheld, by filing a leave petition on which we granted leave to consider the question which relates only to the Civil Court's jurisdiction to entertain the suit itself.
 
3. Mr. S.R. Pal, learned counsel for the appel­lant, contends that participation in election not being a common law right but being a right created by a special statute which also provides for the remedy to an aggrieved person in connection with an election, only that remedy is available from the forum created by the special statute, and that jurisdiction of any civil Court to determine any dispute regarding elec­tion stood ousted by necessary implication. Learned counsel has referred to section 26 of the UP Ordi­nance which provides that no election shall be called in question except by an election-petition before the Tribunal constituted under the said ordinance. In this connection, the learned counsel has referred to a number of decisions, in particular, the decision of this Court in the cases of A.F.M. Shah Alam and others, reported in 41 DLR (AD), 68. The learned counsel contends further that not only the civil Court's juris­diction is ousted in matters of election disputes, but also the extraordinary jurisdiction of the High Court Division under Article 102 of the Constitution is also ousted except on very limited grounds of total absence of jurisdiction or proved bad faith or malice in law. In conclusion, the learned counsel contends, the respondent's suit not being maintainable the im­pugned order of injunction is totally without juris­diction and consequently the election held on the strength of the injunction order is void.
 
4. Mr. Fazlul Karim, learned counsel for the respondent has made utmost efforts to defend the de­cision of the learned Single Judge who held the suit maintainable. The learned counsel has tried to make a distinction between a pre-election matter and the actual election and has argued that rejection of nomi­nation paper is a pre-election matter which does not constitute an "election dispute" and consequently, he has argued, even if the civil Court's jurisdiction is ousted in the case of an election dispute, it is not ousted in respect of a dispute relating to a pre-­election matter. When his attention was drawn to the observation of this Court in the group-cases reported in 41 DLR (AD), page 68, where it was indicated that election is a process starting from the notifica­tion calling for nomination papers to the final declar­ation of result, the learned counsel has argued that there was no definite opinion made by this Court to this effect in the said decision.
 
5. The learned Single Judge, while considering whether the civil Court's jurisdiction stood ousted by section 26 of the UP Ordinance read with provisions thereof and the Rules made thereunder, has referred to a decision of the Privy Council in the case of Secre­tary of State Vs. Mask & Co., 44 C.W.N. 709 wherein it has been stated:
 
"It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must ei­ther be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases whether the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial pro­cedure."
 
6. There are two parts of this observation of the Privy Council; the first one relates to exclusion of the jurisdiction either by express provision or by necessary implication, and the second part simply enables the court, even if it has got no jurisdiction over a matter, "to examine into cases" in order to see whether provisions of the law which excludes its jurisdiction, have been complied with or whether a statutory tribunal acted in conformity with the funda­mental principles of judicial procedure. In the instant case, the learned Single Judge did not find anything to examine under the second part of the observation, obviously because there is no complaint that any provision of the Election Law has been violated by the Returning Officer 'or the Nirbahi Officer in exer­cising their power to reject the nomination paper. The learned Single Judge has relied upon the first part of the observation which provides that exclusion of jurisdiction can not be readily inferred except in the case of exclusion by express provision or by ne­cessary implication. The learned Single Judge has come to the conclusion that there is no such ouster of jurisdiction in this case. But in the case in which the Privy Council made the observation it was found that jurisdiction of the Civil Court had been excluded by necessary implication contained in the relevant Act i.e. Sea Customs Act, 1878.
 
7. In that case the dispute related to an assess­ment of Customs duty on some betel nuts imported by the plaintiff-respondents from Java to British In­dia in 1932. Section 182 of the Sea Customs Act gave power to Customs Officers "to confiscate, to increase the rate of duty or to penalise" in respect of certain assessment matters. An order of Custom offi­cials under this section was appealable to the Collec­tor of Customs or any other officer higher in rank, and the appellate order was made final, subject to any revision by the Government. In that case the plain­tiff feeling aggrieved by an order of assessment made by the Assistant Collector preferred an appeal to the Collector who dismissed his appeal. He then filed a revisional application before the Central Govern­ment, who, however, did not interfere with the Col­lector's order. Thereupon he challenged the assess­ment by filing a suit in the court of Subordinate Judge. Maintainability of the suit was challenged by the defendant on the ground that the Sea Customs Act, which was a special statute, provided for a fo­rum to redress grievances, if any, and when the deci­sion of that forum was "final" under section 188, Civil Court's jurisdiction stood ousted by necessary implication. The trial Court upheld this contention and dismissed the suit, but the High Court in appeal took a different view and held that the Civil Court's jurisdiction was not ousted by the Sea Customs Act and held that the suit was maintainable. In appeal to the Judicial Committee of the Privy Council by the defendant, Secretary of State, the Privy Council found that the Civil Court's jurisdiction "stood ex­cluded by necessary implication" and in that connec­tion made the observation as already quoted.
 
8. In the instant case, though the learned Sin­gle Judge referred to this observation of the Privy Council, he did not enter into the facts of that case vis-a-vis the facts of the instant case in order to see whether jurisdiction of the Civil Court stood ousted by section 26 of the UP Ordinance which provides that "no election shall be called in question except by an election petition before the tribunal". In com­ing to the decision in the case of the Secretary of State Vs. Mask & Co., their Lordships of the Judi­cial Committee referred to the judgment of Willes, J in Wolverhampton New Waterworks Co. Vs. Hawkesford (6 C.B.N.S. 336) which was approved by the House of Lords in Neville Vs. London Express Newspaper (1919 A.C. 368), where it was observed:
 
"Where the statute creates a liability not ex­isting at common law, and gives also a particu­lar remedy for enforcing it...............the party must adopt the form of remedy given by the statute".
 
9. Elections for Union Parishads are governed, as already indicated, by the UP Ordinance and the Rules made thereunder. These are special statutes covering the entire gamut of election matters. Right to seek election to a Union Parishad is neither a common law right, for the enforcement of which a Civil Court may come forward, nor is it a constitu­tional right, such as the Fundamental rights, as de­scribed in Chapter IV of our Constitution, for the enforcement of which writ jurisdiction can be in­voked, except on a limited ground of coram non-judice or malice. As such, the right or liability creat­ed by the Election laws can be enforced only through the Tribunal which has also been created thereunder. It may be mentioned here that apart from this Court's decision in A.F.M. Shah Alam's case, differ­ent Benches of the High Court Division considered the question as to whether the Civil Court got juris­diction to entertain any election dispute and most of these Benches answered the question in the negative. Some of these cases are Monir Ahmed Khan Vs. Bozlu Mia, 1988 BLD 241; Jalaluddin Ahmed Vs. Matiur Rahman Khan, 41 DLR, 77; Mostafa Kamal Vs. B.D. Habibullah & ors, 41 DLR 197. On the other hand, in two cases... Habibur Rahman Vs. Election Commission, 40 DLR 459 and Haji Sultan Ahmed Vs. Abdul Jalil, 40 DLR 512 the Benches answered the question in the affirmative. It is these two cases on which the learned Single Judge in the instant case placed reliance in coming to the conclu­sion that Civil Court's jurisdiction was not ousted. When there were conflicting decisions between Di­vision Benches, the learned Single Judge should have referred the matter to a larger Bench instead of taking upon himself the responsibility to decide this impor­tant question of law.
 
10. As to the observation of this Court made in the cases of A.F.M. Shah Alam and others, (41 DLR (AD) 68, it appears that the learned Single Judge did not go through the judgment carefully, and consequently, he held the erroneous view that rejec­tion of a nomination paper "is not a part of election but it is a pre-election dispute" and therefore, it is outside the scope of the election tribunal created un­der section 26 of the UP Ordinance. It was held by this Court there that election is not mere selection of a candidate by a single act of casting votes—i.e. the act of polling, but it is the entire procedure to be gone through to return a candidate to a representative office, such as a Union Parishad. This process consists of several stages starting from the notification of the Election authorities inviting nomination pa­pers and ending with the declaration of result after the counting of ballot papers and publication of the result in Official Gazette. Publication of the result in the Gazette is indispensably necessary because unless it is made no candidate can go to the Tribunal chal­lenging the election. In the said cases we also ob­served that the Election Commission got power both under the Constitution, in Article 119, and under section 24 of the UP Ordinance, to organize, con­duct, supervise and hold an election and, that the Election Commission, by necessary implication, got power to intervene at any stage of the election pro­cess before the notification in the Gazette is pub­lished. In a narrow sense election, as described in the definition-clause of the UP Ordinance, means selec­tion of a person on the result of a poll; but even without actual poll taking place a person may be declared elected uncontested. Therefore, for the purpose of determining an "election dispute" the term 'election' includes the whole election process passing through several stages and a dispute in any stage is an election dispute which can be challenged and determined only by an election petition after conclu­sion of the final stage of the process. Law does not contemplate intervention of any Court during any in­termediate state of the election process. To allow court's intervention will hinder the process of elec­tion which is the basis for running a democratic in­stitution. If the Civil Court entertains a suit and is­sues temporary injunction therein say, against acceptance or rejection of a nomination paper or against the counting of ballot papers or against the fixing of polling stations or their changes, the elec­tion schedule could not be maintained and the elec­tion will be postponed, in some cases for years to­gether. That is why in matters of all elections, whether they relate to the Parliament or to local bod­ies, lower or higher in grade, court's intervention by temporary injunction is out of question.
 
11. The Indian Supreme Court took a rigid stand all through against interference in any interme­diate stage of election by any court including the High Court in its writ jurisdiction. The Indian Su­preme Court took the view that any dispute at any stage of the election process including the notifica­tion calling for nomination papers or rejection of a nomination paper should be postponed till conclu­sion of the election after which the election may be challenged on any ground including the ground for wrongful acceptance or rejection of a nomination pa­per. Reference may be made to the cases of N.P. Ponnu Swami Vs. Returning Officer, AIR 1952 S.C., 64; Mohinder Singh Vs. Chief Election Commissioner, AIR 1978 S.C. 851; Inderjit Barua Vs. Election Commission of India, 1984 SCR, 1911; A.KM. Hasanuzzaman Vs. Election Commission 1 SCR 493 and Election Commissioner of India Vs. Shivaji, 1984 1 Supreme Court Cases 277. In the last mentioned case the Supreme Court expressed their utter disapproval of some orders of the High Court of Bombay for interference under writ jurisdic­tion in the intermediary state of an election to Parlia­ment and observed "we are very much disturbed by the manner in which the High Court of Bombay has interfered not once by twice with the process of elec­tion". In the cases of A.F.M. Shah Alam & others we hold that election was a long-drawn process and no interference with any stage of the process was warranted and observed: "a bare reading of the Ordi­nance and Rules will show that at no intermediate stage the legislature contemplated any proceeding which will unduly retard or obstruct the process of election".
 
12. The learned Single Judge erred in taking the narrow meaning of the word 'election', and one of his grounds for interference was that acceptance/ rejection of a nomination paper being a pre-election matter was not included in the definition of election and as such the bar to suit was not applicable to this case. Another ground taken by him for interference was that Election Commission's direction having been disobeyed by the Returning Officer, the plain­tiff had no remedy against the Returning Officer's ar­bitrary order. Absence of a remedy, even if it were the case, cannot confer jurisdiction upon a Civil Court in a matter which is governed by a special statute which also provides for a special forum for seeking remedy. The learned Single Judge based his argument on the premises that dispute as to rejection of a nomination paper was a dispute civil in nature. But it must be kept in mind that Civil Court's juris­diction, even on a civil matter, may be ousted by any express provision of law or by its necessary im­plication. Section 26 of the UP Ordinance has put a clear bar to determination of an election dispute by any court except the Election Tribunal. Secondly, the whole scheme of the election law is such that no dispute as to election can be raised at any intermedi­ate stage, but it may be raised only after conclusion of the whole election process. This means that Civil Court's jurisdiction is impliedly excluded; it is therefore clear that the learned Single Judge wrongly held the suit to be maintainable. The suit in question was not maintainable and as such the election held on the strength of the temporary injunction made in the suit got no leg to stand upon. It may be mentioned here that even if this suit were maintainable, the learned Assistant Judge could not have granted the reliefs by her order of interim injunction. In fact she decreed the suit giving the plaintiff all the reliefs he prayed for—cancellation of the defendant's election, accep­tance of the plaintiffs candidature and a direction for holding a fresh election. These reliefs are outside the ambit of a temporary injunction. The only relief she could have given, if at all, was to restrain the defendant from entering upon his office as Chairman pending disposal of the suit.
 
13. Now the question is whether the dismissal of the suit, along with cancellation of the respon­dent's election, will necessarily render the appellant's uncontested election valid and lawful. The learned Single Judge held that the uncontested election hav­ing been declared by the Returning Officer disobey­ing the Election Commission's direction to accept the respondent's nomination paper was illegal and void. Mr. S.R. Pal contends that this view was wrong mainly because the Election Commission’s direction was not disobeyed, as the declaration of the uncontested election was made before the Election Commission's order was communicated to him. But in view of the facts disclosed it is clearly found that the Election Commission's order was communicated by telephone on that very day, though a copy of the order was available a few days later. The Election Commission's power to give the direction has not been challenged, nor can it be, in view of its general power of conducting, supervising and holding elec­tions in fair and proper manner. The uncontested election having been declared in disregard to the Elec­tion Commission's direction it can not be main­tained as a fair and proper election. Mr. Pal next con­tends that there is no basis for the respondent's nomination as he is a defaulter according to his own statement that he had not repaid the loan but merely filed a suit. That suit (O.C. Suit No. 4 of 1982) is not as to default in payment of the loan but for a declaration that the order removing him from the ser­vice of the Bank was illegal. Mr. Pal contends that even if the said suit were decreed still the respondent would be disqualified under another provision of the disqualification clause in section 7(11)(e) of the UP Ordinance in that in the case of his reinstatement in his service he will incur the disqualification as to holding of an "office of profit" under a statutory authority controlled by the government. Be that as it may, this question is not before us in this appeal, which is limited to the question of Civil Court's ju­risdiction over election disputes. What we find is that the uncontested election is not sustainable in law as it was declared in disregard to the Election Commission's order. This election must also go making the way clear for a fresh election giving op­portunity to all parties interested in it.
 
14. The result, therefore, is that the appeal is allowed; the impugned order of the High Court Divi­sion upholding the order of the Assistant Judge granting temporary mandatory injunction is set aside and the suit is dismissed as not maintainable. Elec­tion of the respondent held on 14 September 1989 is set aside. So also is set aside the uncontested elec­tion of the appellant declared on 16 January 1988. A fresh poll is to be held for the Union Parishad. No cost.
 
Ed.