Case No: Civil Petition for Leave to Appeal No. 1425 of 2009
Judge: Md. Abdul Matin,
Court: Appellate Division ,,
Advocate: Mr. Rokanuddin Mahmud,Mr. A. S. M. Moniruzzaman,,
Citation: VII ADC (2010) 451
Case Year: 2010
Appellant: Tafazzal Hossain
Respondent: Government of Bangladesh
Subject: Election Matter,
Delivery Date: 2009-10-11
MM Ruhul Amin, CJ.
Md. Joynul Abedin, J.
Md. Abdul Matin, J.
ABM Khairul Haque, J.
The Government of the People's Republic of Bangladesh represented by the Secretary, Ministry of Local Government Rural Development and Co-operatives, Bangladesh Sachibalaya, P.S.-Ramna, Dhaka-1000 and others
October 11, 2009.
The Pourashava Ordinance, 1977
Section 18A (1)
Rule 5 of Declaration and Alteration of Municipalities Rule, 1978
High Court Division rejected the application for restoration of the writ petition taking the view that the petitioner is a chairman of one Union Parishad not of the whole Pourashava composed of area of three Union Parishad. So there is no reason to allow him to continue his function as chairman of the Pourashava which is absolutely question of merit of the writ petition which should be disposed of afer giving sufficient opportunity of hearing to the writ petitioner but the petitioner got no chance of hearing on merit of the writ petition at the time of hearing of application for restoration which is against the principle of natural justice and as such the impugned order is liable to be set aside for the ends of justice. …… (13)
Rokonuddin Mahmud, Senior Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
A. S. Moniruzzaman, Assistant Attorney General instructed by Zahirul Islam, Advocate-on-Record-For the Respondents.
Civil Petition for Leave to Appeal No. 1425 of 2009.
(From the judgment and order dated 13.07.2009 passed by the High Court Division in Writ Petition No.2375 of 2001.)
Md. Abdul Matin J.
1. This petition for leave to appeal is directed against the judgment and order dated 13.07.2009 passed by the High Court Division in Writ Petition No.2375 of 2001 rejecting the application for restoration and discharging the Rule.
2. The facts, in short, are that by a notification issued by the Local Government, Rural Development and Co-operative bearing S.R.O. No.98 of 2001 dated 19.04.2001 published in the Gazette Extraordinary on 29.04.2001 Mouza Noagram (J.L. No.104), Mouza Khasa (J.L.No.105), Mouza Khasaripara (J.L.No.102), Mouza Fatehpur (J.L.No.107), Mouza Kashba (J.L.No.106) and Mou Sreedhara (J.L.No.109) were constituted a new Municipality named Bianibazar Pourashava with effect from 30.04.2001 under Rule 5 of Declaration and Alteration of Municipalities Rule, 1978 the said areas of the unions being earlier declared as urban areas under the Pourshava Ordinance, 1977. The said notification being S.R.O. No.98 Ain/2001 as published in the Gazette Extraordinary dated 29.04.2001.
3. The election of Bianibazar Union Parishad was held on 04.02.1997 and the petitioner was elected as Chairman of the abovementioned Union Parishad and his name was published in the Gazette Notification dated 22.02.1998.
4. Articles 59 and 60 of the Constitution of the People's Republic of Bangladesh were omitted by the 4th amendment and while the provisions of these Articles of the Constitution were non existent, the Pourashava Ordinance, 1977 was enacted and subsequently by Pourashava Amendment) Ordinance, 1981 two new sections 18A and 18B were inserted in the 5ourashava Ordinance, 1977. Section 18A runs as follows:-
"18A. Appointment of and Administrator in certain circumstances.- (1) where an urban area is declared to be a Municipality, the Government shall appoint an Administrator to perform the functions of the Pourashava of that Municipality till a Pourashava is constituted in accordance with the provisions of this Ordinance.
(2) That Government may, where necessary, appoint a committee consisting of such number of members as it deem fit to assist the Administrator in discharge of his functions.
(3) That Administrator and the members of the committee, if any, shall respectively exercise the powers of the Chairman and of the Commissioner."
5. By the 12th amendment of the Constitution effective from 18th September, 1991, Articles 59 and 60 were brought back in the Constitution. Article 59 of the Constitution as inserted by the 12th Amendment is quoted as below: -
(2) Everybody such as is referred to in clause (1) shall, subject to this Constitution and nay other law, perform within the appropriate administrative unit such function as shall be prescribed by Act of Parliament which may include functions relating to-
(a) Administration and the work of public officer;
(b) The maintenance of public order;
(c) The relating to implementation of plans relating to public services and economic and economic development."
6. In view of the provisions of Article 59(1) requiring elected representative of areas of local Government to function therein, provision contained in section 18A(1) has become ultra vires the Constitution.
7. Ignoring the provisions contained in the Article 59(1) of the Constitution, Government of Bangladesh in the Ministry of Local Government has issued a notification No. Poura-3/CB-Gathan-29-97/518/1 (5) dated 03.06.2001 under the signature of Mohammad Ali Khan, Deputy Secretary (Poura) appointed Upazilla Nirbahi Officer, Bianibazar as administrator of Bianibazar Municipality under Section 18A (1) of the Pourashava Ordinance, 1977 (Act XXVI).
8. Article 11 of the Constitution provides that "That Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human persons shall be guaranteed and in which effective participation by the people through their elected representative in administration at all levels shall be ensured." To give full effect to this fundamental principle of state policy the function of the municipality must be entrusted to a body composed of persons elected in accordance with law and no provisions of law can be made which may require or lead to entrustment of the functions to any nominated persons. The writ petition was heard on 04.06.2001 and Rule nisi was issued with interim order.
9. The writ petition was listed for hearing in the daily cause list of the High Court Division on 07.07.2009. But on that date the learned Advocate for the petitioner could not come to the court due to his personal difficulty and the matter was taken up for hearing to discharge the Rule for default. Thereafter the learned Advocate for the petitioner filed an application for restoration of the writ petition to its original file and number after setting aside the order dated 07.07.2009 and the same was taken up for hearing on 13.07.2009 as an application as item No.175 to reject the same and also discharging the Rule by order dated 13.07.2009.
10. Being aggrieved and dissatisfied with the judgment and order of the High Court Division the petitioner has filed this petition for leave to appeal.
11. Heard Mr. Rokonuddin Mahmud, learned Counsel appearing for the petitioner and Mr. A. S. Moniruzzaman, learned Assistant Attorney General appearing for the respondents and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
12. The learned Counsel submits that the High Court Division committed error of law in not giving opportunity to the petitioner of being heard and touching the merit of the case without restoring the application rejected the same giving no reason in this regard and as such the impugned judgment and order is liable to be set aside.
13. He submits that the High Court Division rejected the application for restoration of the writ petition taking the view that the petitioner is a Chairman of one Union Parishad not of the whole Pourashava composed of area of three Union Parishad. So there is no reason to allow him to continue his function as chairman of the Pourashava which is absolutely question of merit of the writ petition which should be disposed of after giving sufficient opportunity of hearing to the writ petitioner but the petitioner got no chance of hearing on merit of the writ petition at the time of hearing of application for restoration which is against the principle of natural justice and as such the impugned order is liable to be set aside for the ends of justice.
14. The above submissions made on behalf of the petitioner merit consideration.
15. Leave is granted to consider the same.
16. Security of Tk. 1,000/- is to be deposited within 1 (one) month.
17. Preparation of paper book is dispensed with as prayed for.
18. The order of stay granted earlier shall continue till disposal of the appeal.