Saber Hossain Chowdhury Vs. Bangladesh Election Commission and others, 57 DLR (AD) (2005) 105

Case No: Civil Appeal No. 147 of 2002

Judge: Amirul Kabir Chowdhury ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Subrata Saha,,

Citation: 57 DLR (AD) (2005) 105

Case Year: 2005

Appellant: Saber Hossain Chowdhury

Respondent: Election Commission

Subject: Election Matter,

Delivery Date: 2005-3-22

Supreme Court of Bangladesh
Appellate Division
Md. Fazlul Karim J
MA Aziz J
Amirul Kabir Chowdhury J 
Saber Hossain Chowdhury
Bangladesh Election Commission and others
March 22, 2005.
The Representation of the People’s Order, 1972 (P.O. 155 of 1972)
Article 49(4)
At the time of presenting an election petition with the High Court Division deposit of Taka 2000 as security is mandatory. The petitioner deposited the amount through lawyer in due time. Such deposit in the manner is lawful. Deposit of the amount personally by the petitioner himself is directory and not mandatory.
Cases Referred to:
Giasuddin Quader Chowdhury vs. ABM Fazle Karim Chowdhury and others 2003 BLD (AD) 215= 9 BLC (AD) 10; Kamaraja Nadar vs. Kunju Thevar and others AIR 1958 (SC) 687.        
Lawyers Involved:
Subrata Chowdhury, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on- Record-For the Appellant.
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on- ­Record-For Respondent No. 3.
Dispensed with-Respondent Nos. 1, 2, 4-25. 
Civil Appeal No. 147 of 2002.
(From the judgment and order dated 30‑4‑2002 passed by the High Court Division in Election Petition No. 6 of 2001).
Amirul Kabir Chowdhury J.
1. This appeal by leave granted by the High Court Division at the instance of the appellant-election petitioner Saber Hossain Chowdhury arises out of a decision of the High Court Division being order dated 30.4.2002 passed in Election Petition No. 6 of 2001. 
2. The facts, in short, are that the appellant contested the election to the post of Member of Parliament from Dhaka-6 (Motijheel-Sabujbagh) Constituency in the election on 1st October 2001 and the respondent No.3 was declared elected in the election and the result was published in the official Gazette on 4 October, 2001. The appellant challen­ged the result of the election filing an application under Article 49 of the Representation of the People Order, 1972, hereinafter referred to as the Order. The said petition was registered as Election Petition No. 6 of 2001. The respondent No. 3 along with other respondents filed written objections. It was contended, inter alia, on behalf of the contesting respondents that the election petition itself was not maintainable in view of non-fulfilment of Article 49(4) of the Order inasmuch as the sum of Taka 2,000 as security for the costs of the petition has not been deposited by the election petitioner‑appellant himself and thus the election petition became liable to be dismissed under Article 58 of the Order. 
3. Issues were framed accordingly and issue No. 1 was framed to decide as to maintainability of the election petition and to decide whether the petition was liable to be dismissed under Article 58 of the Order. The said preliminary issue was taken up for hearing and after hearing the parties a Single Judge of the High Court Division by the impugned decision dismissed the election petition. Hence is this appeal. 
4. In support of the appeal Mr. Subrata Chowdhury, learned Senior Advocate, placed the impugned decision and submits, inter alia, that the High Court Division committed error in law in holding that the deposit for security for cost of the election petition made by the Advocate of the appellant was not in accordance with Article 49(4) of the Order and thus misconstrued the provision of the said Article. 
5. He further submits that in the absence of any specific Rule the Chief Justice of Bangladesh was competent to give necessary direction as to deposit of security for cost for election petition and the notification so issued on 18‑10‑2001 by the Registrar of the Supreme Court was valid one and the appellant deposited the costs accordingly and therefore, the petition does not come within the mischief of any provision of Article 58 of the order and, as such, the impugned decision being bad in law and prone with error is liable to be set aside.
6. In order to appreciate the submissions let us quote the relevant portion of Order 49 which runs as follows:
"(49) (1) No election shall be called in question except by an election petition presented by a candidate for that election in accordance with the provisions of this chapter.
(4) At the time of presenting an election petition, the petitioner shall deposit in the High Court Division in accordance with the rules of the High Court Division a sum of Taka two thousand as security for the costs of the petition".    
Article 58 reads as follows:     
"58. The High Court Division shall dismiss an election petition if-   
(a) the provisions of Article 49 or Article 50 or Article 51 have not been complied with; or….” 
7. From the aforesaid provision of law it appears that in order to maintain an election petition at the time of presenting the said petition the appellant is required to deposit in the High Court Division in accordance with the rules of the High Court Division a sum of Taka 2,000 as security and for non-compliance of the aforesaid provision under Article 58 of the Order election petition shall be dismissed by the High Court Division. 
8. The bone of contention in the instant case is that the appellant-election petitioner did not deposit the amount himself and, as such, did not comply with the provision of Article 49(4) of the order. There is no denial that a notification dated 18-10-2002 was issued by the Registrar of the Supreme Court under the direction of the Chief Justice of Bangladesh which is quoted below:
“সংশ্লিষ্ট সকলের অবগতির জন্য জানানো যাইতেছে যে, The Representation of the People (Amendment) Ordinance, 2001 সংশোধনের ফলে নির্বাচন সংক্রান্ত অভিযোগ শুনানির নিমিত্ত হাইকোর্ট বিভাগকে ক্ষমতা অর্পণ করা হইয়াছে। উক্ত অধ্যাদেশের ৪৯(৪) বিধান অনুসারে Security for the cost of petition হিসাবে নির্ধারিত টাকা অন্যান্য সিভিল মামলার ন্যায় নির্বাচনী মামলার ক্ষেত্রেও একই পদ্ধতিতে হাইকোর্ট বিভাগের ক্যাশিয়ারের নিকট জমা দেওয়া যাইবে এবং নির্বাচনী মামলা সমূহ ফাইলিং শাখায় দাখিল করিয়া স্ট্যাম্প রিপোর্টারের রিপোর্ট গ্রহন পূর্বক সংশ্লিষ্ট কোর্টে উপস্থাপন করা যাইবে।”
9. There is also no denial that the appellant deposited the amount through his learned Advocate and the pay-in slip depositing the money was also signed by the appellant himself. The High Court Division after considering various rules and the aforesaid notification of the Bangladesh Supreme Court held:
"After perusing the slip of payment of cost it cannot be said that the petitioner himself deposited the cost. There is no ambiguity in the language of the aforesaid Article 49(4). Since there is no ambiguity the interpretation of word "Shall" can be taken into consideration as its plain meaning. If the word "shall" and "shall be" would be directory one to the petitioner at the time of presentation of the election petition and also about the contents of the election petition, the penal Article 58(a) would not have been inserted in the election law by the legislator. When in a special statute the legislature use the word "shall/shall be" directing a person to perform in the manner or form with declaring what shall be the consequence of non-compliance of the same, the intention of the legislature is clear that the same must be done by that person to whom it directs and it is imperative and not directory to that person.
In view of the above discussion it is found that the petitioner did not comply with the provision of Article 49(4) of the Representation of People's Order, 1972 in depositing the security for the cost of the election petition."
With the aforesaid finding the High Court Division dismissed the election petition as already mentioned above. 
10. In support of the submissions, learned Advocate of the  appellant has referred to the decision in the case of Giasuddin Quader Chowdhury vs ABM Fazle Karim Chowdhury and others 2003 BLD (AD) 215 = 9 BLC (AD) 10.

11. In the aforesaid decision considering various decisions in the cases namely, Kamaraja Nadar, appellant vs Kunju Thevar and others, respondents reported in AIR 1958 (SC) 687, MKarunanidhi, appellant vs HV Handa Na & others, respondents and R. Rangasmi, petitioner vs VCR Rajappa and another, respondents and AChindrasekharan, appellant vs  PS Manian  and others, respondents, reported in AIR 1983 558, the moot point involved in the instant appeal has been considered and decided as follows :
The learned Single Judge committed an error of law in not holding that the meaning and concept of the word 'petitioner' shall deposit does not mean that the petitioner shall, in person, have to deposit and not by anyone on his behalf and if so the Election Petition shall not be registered; that there being no such consequential term that is to say, the defaulting clause, to the effect that unless the deposit is made by the, appellant himself in person, the Election petition will not be entertained and it shall be dismissed in limini So, the argument of RafiquI Huq being that the deposit as made on behalf of the appellant through his learned Advocate, Zarullah Chowdhury is quite valid in terms of the provisions of Article 49(4) of the Order, 1972 is of substance and further we hold that the term 'petitioner’ as quoted in Article 49(4) of the Order, 1972 as (amended) does not mean the petitioner himself and may be somebody on his behalf and this part of the said order, in our view, is directory." 
With the aforesaid observations this Division set aside the decision of the learned Single Judge.
12. The same point being involved in the instant appeal before us Mr. Khandker Mahbubuddin Ahmed, on perusal of the aforesaid judgment of the Appellate Division, finds it difficult to oppose the appeals, and candidly submits that the election dispute may be thrashed out by the High Court Division in accordance with law. 
13. We have considered the submissions and perused the materials on record. In view of the judgment of this Division in Civil Appeal No.112 of 2002 as referred to above, we do not find any reason to hold any contrary view. The decision of the Single Judge of the High Court Division thus calls for interference. As such this appeal must succeed.
In the result, the appeal is allowed without any order as to costs. The findings and decisions of the learned Single Judge are set aside.