JAMAL UDDIN VS MAJOR GENERAL ABDUS SALAM 66 DLR HCD 362

ANALYSIS OF THE FACT:

The petitioner was an inhabitant of the constituency Mymensingh-9 wherefrom Major General (retired) Abdus Salam, Respondent no.01, had been elected in the 9^th parliamentary election and since then holding the post of the member of the parliament. In the estimation and consideration of the petitioner respondent no.01 is a disqualified person holding the public office of MP as per provisions of our constitution and Representation of the People’s Order,1972. The petitioner had brought this application under article 102(b)(ii).

ISSUE:

Whether the Respondent no.01 is holding the Office of the Member of the Parliament from the constituency Mymensingh-9 lawfully or not?

ARGUMENT FROM THE PETITIONER:

It was argued that 

Ø  As per the provisions of article 66(2)(g) of our Constitution  and article 12(1)(l) and 12(1)(m) of the Representation of the People Order if an individual or a director of a company defaults in repaying any loan then he shall be disqualified to be a candidate for the parliamentary election. The aforesaid disqualification continues to operate even after being elected as a Member of Parliament in view of words used therein and holding of the post of the Member of Parliament by a “loan defaulter” was completely illegal. The respondent no.01 was found to be a loan defaulter by the Election Commission as well as by the Returning Officer. 

Ø  Respondent no.01 had already withdrawn the other writ petition. So, the orders passed by the Returning Officer remained in operation.

Ø  The Respondent no.01 challenged the legality of the rejection order of his nomination only recently during the hearing of the matter but issuance of a rule could not shield him to remain as an MP as it had been settled by a series of decisions of our Apex Court that no writ lies against an order passed by the Returning officer or the Election Commission regarding any election matter. 

Argument from the Respondent:

It was argued that

v  Since the respondent having been a Returned Candidate in the 9^th Parliamentary Election was then performing as a Member of Parliament and as per the provisions of our constitution the dispute should be raised in parliament and the Honorable Speaker will refer the matter to the Election Commission and then the latter will give the final decision. So, the petitioner had chosen the wrong forum and therefore, the writ petition was a misconceived one and not maintainable.

v  Regarding the issue of the  respondent’s being a loan defaulter it was argued that  had never more than 25% of the allotted shares as required to be a loan defaulter under the proviso of section 5© of the Bank Company Act,1991 and he resigned from the post of the director well before the 9^th parliamentary election.  

v  The other writ petition was rightly filed to challenge the action of the Bangladesh Bank in inclusion of the name of the respondent in the CIB list as well as the orders of the Election Commission and the Returning Officer who had cancelled the nomination paper of the respondent on the ground of being a loan defaulter. There was no illegality by the High Court Division in entertaining the said writ petition because there was no alternative forum for seeking redress. In the Election Tribunal only the contesting candidate is entitled to agitate any election dispute under the concerned law. Since the respondent was not a contesting candidate he could not go to Tribunal for vindication of his legal right.

v  Without at first challenging the actions of the Election Commission in publishing the Gazette Notification by declaring the respondent as an elected MP the instant writ petition in the form of quowarranto was not maintainable. In order to be competent as a writ petitioner in a writ petition in a writ of quowarranto the petitioner is required to prove that he has to prove that he has approached the court bonafide but  the chronology

of events of this case showed  that the petitioner was conspiring to oust the respondent from the position of MP by filing this writ petition with an ulterior motive to keep him away from the upcoming 10^th parliamentary election.

Decision and Reasoning behind the decision:

The instant writ petition was maintainable because there was no other efficacious forum and the petitioner’s present move was bonafide because being a voter of the concerned constituency of the respondent he has every legitimate right to see that the MP of his constituency was not holding the post illegally.

The respondent was a disqualified person to perform function as a member of parliament and the provisions laid down in article 66(4) should come into operation. Accordingly the office of the Honorable Speaker and Election Commission had to be notified about the outcome of this case to take further steps.

There was no scope to convert the present quo warranto proceeding into the certiorari because the petitioner was not an aggrieved person but any person only.

Respondent had the intention to abuse the process of the court by filing the other writ petitions in getting an interim order and thereby to enable him to contest in the election and thereafter to continue in the post of MP without disposing of the Rule.

Principle:

Two principles came out from this case:

•      In the absence of any forum for getting an efficacious remedy it is the  High Court Division which has the power to grant an efficacious remedy as per the application filed with due compliance under our constitution.

•      A person approved by the court as a person aggrieved may convert his position into any person as required for becoming a petitioner in a writ of quo warranto but that is not possible to convert a quo warranto proceeding into a certiorari proceeding where his position is a person only.

Importance of this case:

In this case the requirements for filing writ petition under the article 102(1) (a)(ii) and 102(2)(b)(ii) in the form of certiorari and quo warranto are elaborately discussed. This case has  also upheld the jurisdiction of High Court Division in providing an efficacious remedy in the absence of any other forum. In this case the nature of disqualifications in the case of being a parliament member as per the provision 66(4) of our constitution has also been discussed.