APPELLATE DIVISION
(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
MA Wahhab Miah J
Syed Mahmud Hossain J
Siddiqur Rahman Miah J
AHM Shamsuddin
Choudhury J
Judgment May 7th, 2013.
Taposh Malaker …
……….Petitioner
vs
Government of Bangladesh , Represented by the Secretary, Ministry of (LGRD) and others……………Respondents.
Local Government (Pourashava) Act (LVIII of 2009) Section 19(2)(Jha)
In order to be a valid candidate for the Pourashava election, the petitioner must not be a defaulter on the date of submission of the nomination paper. The petitioner is a defaulter within the meaning of section 19(2) (Jha) of the Act. . ….. (9)
Md Khurshid Alam Khan, Advocate, instructed by Md Zahirul Islam Advocate-on-Record-For the Petitioner.
Judgment
Syed Mahmud Hossain J: This civil petition for leave to appeal is directed against the order dated 6-1-2011 passed by the High Court Division in Writ Petition No.10044 of 2010 summarily rejecting the Application .
2. The facts, leading to the filing of this, petition, in brief, are:
The leave petitioner as the writ-petitioner filed Writ Petition No.10044 of 2010 before the High Court Division challenging Order No.2 dated 22-12-2010 passed by respondent No.2, Deputy Commissioner, Bogra and Appellate Authority, Pourashava Election-l0, Bogra dismissing the appeal and affirming the order dated 15-12-2010 passed by respondent No.3, Upazila Nirbahi Officer and Returning Officer rejecting the nomination paper of the writ petitioner. His case, in short, is that on 1312-2010, the writ-petitioner submitted his nomination paper before the Returning Officer for the ensuing Pourashava Election of 2010 for the post of Councillor of Ward No. 8 of Sherpur Pourashava. The Returning Officer rejected his nomination paper on the ground that the writ petitioner was disqualified under the provision of section 19(2)(S) of the. Local Government (Pourashava) Ain, 2009.
3. Against the order of Returning Officer, the writ-petitioner filed an appeal being Appeal No.2 dated 16-12-2010 before the Appellate Authority, Pourashava Election, 2010 and Deputy Commissioner, Bogra, who dismissed the appeal affirming the order of the Returning Officer without assigning any cogent reason.
4. Being aggrieved by, and dissatisfied with the order No.2 dated 22-12-2010 passed by respondent No.2, Deputy Commissioner, Bogra and Appellate Authority, Pourashava Election-2010, Bogra, the petitioner finding no other alternative and for efficacious remedy, filed Writ Petition No.10044 of 2010 before the High Court Division.
The learned Judges of the High Court Division by an order dated 6-1-2011 rejected the writ petition summarily.
5. Feeling aggrieved by, and dissatisfied with, the impugned order dated 6-1-2011, the writ petitioner as the leave petitioner has filed this instant civil petition for leave to appeal.
6. Mr Md Khurshid Alam Khan, learned Advocate, appearing on behalf of the leave petitioner, submits that the High Court Division committed an error of law in rejecting summarily the writ petition filed by the petitioner although the petitioner is not a defaulter within the meaning of Local Government (Pourashava) Act, 2009 and, as such, the impugned judgment should be set-aside.
He further submits that the petitioner has been elected Commissioner securing huge number of votes and unless leave is granted he will be thrown out of office and, as such, he prays for granting leave to consider whether the petitioner is at all a defaulter.
7. We have considered the submissions of the learned Advocate, the impugned judgment and the materials on record.
8. Having considered section 19(2) (Jha)of the Local Government (Pourashava) Act, 2009, the High Court Division came to a finding that the exemption provided for in that section is only in respect of agricultural loan and that loan for the purpose of manufacturing handicrafts does not come within the exemption. This finding of the High Court Division is based on proper appreciation of section 19(2)Gha) of the Local Government (Pourashava) Act, 2009.
9. Mr Md Khurshid Alam Khan, however, admitted that the petitioner repaid the loan the following day of the submission of the nomination paper and, as such, he was not a defaulter on the date of scrutiny of the nomination paper. The submission of the learned Advocate is erroneous.
In order to be a valid candidate for the Pourashava election, the petitioner must not be a defaulter on the date of submission of the nomination paper. Given the facts, we find that the petitioner is a defaulter within the meaning of section 19(2) (Jha) of the Local Government (Pourashava) Act, 2009.
10. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and facts do not call for interference.
Accordingly, the leave petition is dismissed.
