Syed Hedayet Ali Vs. Chief Election Commissioner and others, 50 DLR (AD) (1998) 89

Case No: Civil Petition for Leave to Appeal No. 158 of 1994

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: MR. Shamsul Hoque Siddique,,

Citation: 50 DLR (AD) (1998) 89

Case Year: 1998

Appellant: Syed Hedayet Ali

Respondent: Chief Election Commissioner

Subject: Election Matter,

Delivery Date: 1994-5-5

 
Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J 
Latifur Rahman J
 
Syed Hedayet Ali
……………….Petitioner
Vs.
Chief Election Commissioner and others
……………….. Respondents 
 
Judgment
May 5, 1994. 
 
The Local Government (Union Parishads) Ordinance, 1983
Sections 6(2), 9 & 13(b)
The Oath of Office (Union Parishads) Rules, 1983
Rule 2 
The failure of the Chairman and the Members to take oath will be inferred only when the Deputy Commissioner fixes a date of taking oath within 30 days of Gazette Notification of the result and the Chairman or Members, without good cause shown, fail to take oath on that date……………………(4) 
 
Lawyers Involved:
SS Halder, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner. 
Shamsul Haque Siddique, Advocate-on-Record—For the Respondent No. 5.
Respondent Nos. 1-4 and 6-14— Not represented.

 
Civil Petition for Leave to Appeal No. 158 of 1994. 
(From the judgment and order dated 9-3-94 passed by the High Court Division in Writ Petition No. 3777 of 1992).
 
JUDGMENT
 
Mustafa Kamal J.
 
1. This petition for leave to appeal by the writ petitioner is from the judgment and order dated 9-3-94 passed by a Division Bench of the High Court Division in Writ Petition No. 3777 of 1992 discharging the Rule Nisi.  
 
2. The petitioner was elected as Chairman of No. 8 Shaitgambuj Union Parishad in 1988, but in the election held on 27-1-92 he could not come out successful against respondent No.5. The name of respondent No. 5 and Members elected were published in the Official Gazette on 22-3-92, but as the names of 8 elected members, i.e. respondent Nos. 7-14 were incorrect, their names were subsequently published in the Official Gazette on 19-5-92. The Deputy Commissioner, Bagerhat, respondent No. 3, on receipt of the Gazette Notification from the office of the Election Commission directed the Thana Nirbahi Officer, Bagerhat Sadar, respondent No.4 by letter dated 17-6-92 to administer the oath of office to the Chairman and members within 7 days therefrom. By letter dated 15-7-92 respondent No.4 fixed 20-7-92 as the date of administering the oath to respondent Nos. 5-14. On 20-7-92 the petitioner filed Title Suit No.153 of 1992 for a declaration that the Memo. fixing the date of administration of oath to respondent Nos.5-14 was illegal, being time-barred. No oath of office could be administered on 20-7-92. The petitioner’s prayer for injunction in the said title suit being rejected on 5-8-92 the elected members of the Union Parishad filed an application to respondent No.4 for administering oath to them. Thereafter on 17-8-92 respondent No.4 administered oath of office to respondent Nos. 5-14 and by a Memo. dated 22-10-92 directed the petitioner to make over the charge of office of Chairman to respondent No. 5. The petitioner challenged the Memo. dated 22-10-92 in the writ petition on the ground that no oath of office can be administered beyond 30 days from the date of publication of the names of respondent Nos.5-14 in the Official Gazette. Repelling that contention, the High Court Division discharged the Rule Nisi as already noticed. 
 
3. Mr. S S Halder, learned Advocate for the petitioner relying upon sections 6(2), 9 and 13(b) of the Local Government (Union Parishads) Ordinance, 1983 and Rule 2 of the Oath of Office (Union Parishads) Rules, 1983 reiterates his submission that the oath of office having not been administered within 30 days from the date of publication of the names of the elected Chairman and members in the Official Gazette their offices have fallen vacant and a re-election should have been ordered. 
 
4. These submissions are covered by a judgment of this Division dated 3-4-94 in CA No.67 of 1993 in which it has been held that if the Deputy Commissioner cannot administer the oath of office within the said 30 days no consequence is provided for. The failure of the Chairman and the Members to take oath will be inferred only when the Deputy Commissioner fixes a date of oath within 30 days and the Chairman or Members, without good cause shown, fail to take oath on that date. 
 
5. There is no substance in the petition. The petition is dismissed. 
 
Ed.