Appellate Division
(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Muhammad Imman Ali J
Kartic Das Gupta
…………….Petitioner
vs
Election Commission of Bangladesh and others
…….Respondents .
Judgment
April 3rd, 2011
Constitution of Bangladesh, 1972
Article 102(2)
Writ-petition in question could not be termed as a public interest litigation. The first and primary duty of the writ Bench is to see whether writ petition itself is maintainable in law or whether the writ petitioner has go-any interest in the matter which if not protected he shall suffer injury. . ….. (12)
Voter List
Because of wrong description of a voter or wrong inclusion of a person in the voter list, the existing voter list shall not be rendered invalid, so election of the Pourashavas could very much be held under the old voter list prepared in 2007. . (12)
Constitution of Bangladesh, 1972
Article 102(2)
After the election has been held the only way to challenge the same is by way of filing an election petition before the Election Tribunal. …….(12)
Kazi Mukhlesur Rahman vs Bangladesh, 26 DLR (AD) 44 ref.
Ahsanul Karim, Advocate instructed by AKM Shahidul Huq, Advocate-on-Record-For the Petitioner.
Fida M Kamal, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record-For Respondent No’. 11-13.
AJ Md Ali, Senior Advocate instructed by Taufique Hossain, Advocate-on-Record-For Respondent No. 10.
None Represented-For Respondent Nos. 1-9 & 14-16.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal is directedh against the judgment and order dated the 15th day of February, 2011 passed by the High Court Division in Writ Petition No.9748 of 2010 disposing of the same along with Writ Petition No.601 of 2011 with certain directions upon the Election Commission.
2. The petitioner filed the above mentioned writ petition before the High Court Division making the following prayer:
“(A) Issue a Rule Nisi calling upon the respondents to show cause as to why the notification under Notification (sic) vide Memo No. ……….dated 2-12-2010 issued by the respondent No.1 under the sign (sic) of respondent No.8 for holding Pourashava Election including the names of Pourashavas namely Cox’s Bazaar Sadar, Chakoria, Tecknaf and Moheshkhali for holding election fixing the date on 19-1-2011 without preparation of fresh voter list excluding the Rohingyas should not be declared to have been included without lawful authority and is of no legal effect and why the respondents should not be directed to prepare a fresh voter list excluding the names of the Rohingyas.”
3. The writ-petitioner claimed in the writ petition that he was a voter of Cox’s Bazaar Municipality with voter No.2213-7336-2050. The cause of action to file the writ petition as it appears from the statements made in the writ petition was that in exercise of power as conferred by Section 17 of the Local Government (Pourashava) Act, 2009 and rule 4 of the Local Government (Pourashava) Election Rules, 2010 a final voter list was required to be prepared and published by the Election Commission for every Pourashava for holding election but the Election. Commission without preparing and publishing such voter list announced the election schedule for the election of 4(four) Pourashavas, namely, Cox’s Bazaar Sadar Pourashava, Chakoria Pourashava, Tecknaf Pourashava and Moheshkhali Pourashava by the impugned notification dated 2-12-2010 (Annexure-F to the supplementary affidavit filed by the writ petitioner). Further grievance of the petitioner was that many Rohingyas who are not Bangladeshi citizens were included in the voter list prepared in the year, 2007 under which the elections of the Pourashavas in question were going to be held, so he felt aggrieved and filed the writ petition.
4. From the impugned judgment it appears that another writ petition being No. 601 of 2011 was filed by one Mezbah Uddin complaining same grievance.
5. A Division Bench of the High Court Division after hearing the writ petitions analog gusly disposed of both the Rules by the impugned judgment and order directing the Election Commission to initiate process immediately under Section 7(2) of Act No.6 of 2009 towards deletion of the names of the Rohingyas from the finally published Electoral Rolls of 2007-2008 of Cox’s Bazaar Sadar Pourashava, Chakoria Pourashava, Tecknaf Pourashava and Moheshkhali Pourashava under the District of Cox’s Bazaar and also the Electoral Rolls of 2009-2010 of Moheshkhali Pourashava in accordance with law and to complete the said process within a period of 6(six) months from the date of receipt of the judgment. The High Court Division further directed the Election Commission to intimate the Act of completion of the said process through the office of the Registrar. The High Court Division also observed that the qualified persons who are however, entitled to be enlisted in the electoral roll may have their names included in the electoral roll in compliance with Section 10 of Act No.6 of 2009.
6. The petitioner being aggrieved by the disposal of Writ Petition No.9748 of 2010 in the above terms has filed this Civil Petition for Leave to Appeal before this Court.
7. Before considering the submissions of the learned Counsel for the petitioner we like to state about the development which took place in the matter before final hearing of the writ petition in question.
8. From the judgment it is clear that at the time of issuance of the Rule operation of the impugned notification declaring the election schedule for holding the election of the above mentioned 4(four) Pourashavas was stayed by the High Court Division. Subsequently, this Court stayed operation of the said ad-interim order passed by the High Court Division in the writ petition and then the Election Commission announced fresh election schedule and as per the fresh schedule elections of all the 4(four) Pourashavas mentioned above have already been held on 27-2- 2011.
9. Mr Ahsanul Karim, learned Advocate, appearing for the petitioner, has submitted that when the High Court Division found that it was necessary to prepare a fresh voter list after excluding the names of the Rohingyas pursuant to the provisions of Section 11(2) of Act No.6 of 2009 the election of the Pourashavas in question having been held under the voter list prepared in 2007 the elections of all the Pourashavas have been vitiated and, as such, the result of the elections of the 4(four) Pourashavas in question was bound to be declared to have been held without lawful authority and is of no legal effect, but the High Court Division on an erroneous approach of the case declared the election of the 4(four) Pourashavas, namely, Cox’s Bazaar Sadar, Teknaf, Moheshkhali and Chokaria as valid and lawful and, as such, the impugned judgment and order calls for interference by this Court by way of granting leave.
10. Mr Fida M Kamal, learned Counsel, appearing for respondent Nos.1l-13 and Mr AJ Mohammad Ali, learned Counsel, appearing for respondent No. 10, on the other hand, have contended that the whole purpose to file the writ petition by the petitioner was to stop the process of election of the 4(four) Pourashavas, namely, Cox’s Bazaar Sadar Pourashava, Chakoria Pourashava, Tecknaf Pourashava and Moheshkhali Pourashava, and in the meantime the election of all the four Pourashavas having been held the writ petition became infructuous, consequently, the petitioner has no reason to be aggrieved by the impugned judgment and order to file the Leave Petition, therefore, the leave petitioner does not deserve any consideration on merit. Mr Fida M Kamal has further contended that on merit also the petitioner had no cause to move the High Court Division against the impugned notification on the ground of invalidity of the voter list, as Section 14 of Act No.6 of 2009 has made it very clear that a voter list shall not be declared illegal on the ground of wrong description of a person or inclusion of someone who is not entitled to be included therein.
11. From the judgment of the High Court Division it appears that the learned Judges mooted the following question for their consideration, namely, “Whether Pourashava election of Cox’s Bazaar held by the Election Commission allegedly with defective electoral roll without publishing final voter list as is required under Section 7(4) of the Act No.6 of 2009; for having included Rohingyas as voters in the respective areas in violation of Section 7(1)(ka) of the Act No.6 of 2009, and also for having not prepared separate electoral roll for Pourashava in compliance of Ò¯’vbxq miKvi (†cŠimfv) wbe©vPb AvBbÓ (Act 58 of 2009) can be termed as lawful” and after answering the question in the affirmative spent much of their energy on the point raised by the petitioner that without preparing a fresh voter list excluding the Rohingyas who are not citizens of the country the holding of elections of the 4(four) Pourashava was illegal. The High Court Division also took the view that although the elections of the 4(four) Pourashavas were held because of the order of stay passed by this Court first part of the Rule did not become in fructuous and then decided the question of locus standi of the petitioner in maintaining the writ petition in the affirmative. This view of the High Court Division is not correct. From the prayer of the writ petition as has been quoted hereinbefore it is clear that the petitioner challenged the notice dated 2-12-2010 issued by the Election Commission announcing the election schedule of all the 4(four) Pourashavas in question. The second part of the prayer is absolutely corollary to the first part of the prayer. It is also an admitted fact that in the meantime elections of all the 4(four) Pourashavas had already been held on 27-2-2011 on the new election schedule announced by the Election Commission after the order of stay passed by this Court We are of the view that the moment elections of the 4(four) Pourashavas were held as per the new schedule announced by the Election Commission the writ petition became infructuous and the High Court Division should not have wasted its time deliberating on the issue of the voter list. The High Court Division failed to consider that in fact, it is the election schedule of the 4(four) Pourashavas which was challenged in the writ petition with the sole purpose to stop the holding of election but the election having been held there was no reason to proceed further with the writ petition. From the writ petition it further appears that though the petitioner claimed to be a voter of Cox’s Bazaar Pourashava, he challenged the notification issued by the Election Commission for holding election in respect of 3 (three) other Pourashavas as well under the Cox’s Bazaar District. We are of the view that such kind of prayer m writ jurisdiction was not entertain able. In the four corners of the writ petition the petitioner did not show how he was going to be affected if election of the said four Pourashavas were held as per the schedule announced by the Election Commission.
12. From the writ petition it appears that the petitioner filed the writ petition as” public interest litigation, but we find no infringement of any fundamental right guaranteed by the Constitution of the People’s Republic of Bangladesh or any other vested legal rights affecting the people at large or a section of the people. Therefore, the writ-petition in question could not be termed as a public interest litigation. In this regard the learned Judges of the High Court Division misconceived the concept of locus standi as observed by this Court in the case of Kazi Mukhlesur Rahman vs Bangladesh, reported in 26 DLR (AD) 44. Before going into the merit of a writ petition the first and primary duty of the writ Bench is to see whether writ petition itself is maintainable in law or whether the writ petitioner has got any interest in the matter which if not protected shall suffer injury but in the instant case the petitioner failed to make out any such case. It is also necessary to state that in the election of Cox’s Bazaar Pourashava of which the petitioner is a voter did not offer himself as a candidate for any post. Therefore, the High Court Division ought not to have entered into the merit of writ petition, thus, to waste its valuable time. Further as it appears, the High Court Division totally failed to consider Section 14 of Act No.6 of 2009 which has clearly provided that because of wrong description of a voter or wrong inclusion of a person in the voter list, the existing voter list shall not be rendered invalid, so election of the Pourashavas could very much be held under the old voter list prepared in 2007.
We also like to add that after the election has been held the only way to challenge the same is by way of filing an election petition before the concerned Election Tribunal.
13. For the discussions made above, we ‘find no reason on the part of the petitioner to file this leave petition before this Court, consequently we find no merit in the submissions of Mr Ahsanul Karim.
Accordingly, the petition is dismissed.
