RAFIQUL ALAM Vs. MUSTAFA KAMAL

JUDGEMENT

(1.) The question raised in this appeal by special leave is whether a civil suit is maintainable over an election dispute for the determination of which a separate forum has been created by a special law, namely the Local Government (Union Parishad) Ordinance, 1983, briefly the UP Ordinance. All the courts below namely, the Assistant Judge, the Additional District Judge and a Single Judge of the High Court Division answered the question is the affirmative. The learned counsel for the appellant contends that the concurrent decision of those courts has been made in disregard to the judgment of this Court in the cases of A.F.M. Shah Alam and others, reported in 41 DLR (AD), 68 and also in misconstruction of all relevant Election Laws, in particular, section 26 of the UP Ordinance, which provides that an election dispute may be determined only by an Election Petition before the Tribunal created thereunder.

(2.) Facts leading to this question are as follows: An election was to be held on 10 February 1988 for the office of Chairman of Kolkonda Union Parishad of Gangachara Upazila, Dist-Rangpur and nomination papers were called for. Respondent-Plaintiff filed his nomination paper but it was rejected by the Returning Officer by an order dated 11 January 1988 on the ground that he was a defaulter for nonpayment of a loan taken by him from the Janata Bank; and there having been only one nomination paper left, Appellant-defendant was declared elected uncontested by the Returning Officer. Respondent preferred an appeal against the rejection of his nomination paper to the Nirbahi Officer, but the latter dismissed his appeal whereupon he moved the Election Commission. The Election Commission, by an order dated 16 January 1988, directed the Returning Officer to accept the nomination paper of the respondent. It is alleged that in spite of communication of this order by telephone, the Returning Officer did not accept the respondent's nomination paper, and consequently, the order of the Returning Officer declaring the appellant "elected uncontested" stood. This uncontested election was published in the Official Gazette but before he could enter upon his office, the respondent filed a suit, O.C. Suit No.4 of 1988, in the Court of Munsif (now Assistant Judge) of Gangachara Upazila challenging the appellant's uncontested election and prayed for cancellation of the un-contested election, for a direction upon the Returning Officer to accept his nomination paper and also for a mandatory injunction for holding an election afresh. The plaintiff-respondent simultaneously filed an application for temporary mandatory injunction for giving all those reliefs. The learned Assistant Judge, by her order dated 18 February, 1988 issued a temporary mandatory injunction granting these reliefs namely, the Returning Officer was asked to cancel the uncontested election of the appellant, to accept the plaintiffs nomination paper and to hold an election accordingly. This order was challenged unsuccessfully before the District Judge in Misc. Appeal No.14 of 1988 and then in Civil Revision No.196 of 1988 before the High Court Division. In obedience to this temporary mandatory injunction the Returning Officer cancelled the appellant's election, accepted the plaintiffs nomination paper and held a fresh election on 14 September 1989 in which the appellant also participated. Result of the election was that the appellant was defeated by the respondent who was declared elected and upon his election having been published in the Gazette he entered upon his office as Chairman of the Union Parishad on 16 November 1989. The appellant, however, challenged the High Court Division's order (dated 6 August 1989 in Civil Revision No. 196 of 1988) by which the trial Court's injunction was upheld, by filing a leave petition on which we granted leave to consider the question which relates only to the Civil Court's jurisdiction to entertain the suit itself.

(3.) Mr. S.R. Pal, learned counsel for the appellant, contends that participation in election not being a common law right but being a right created by a special statute which also provides for the remedy to an aggrieved person in connection with an election, only that remedy is available from the forum created by the special statute, and that jurisdiction of any civil Court to determine any dispute regarding election stood ousted by necessary implication. Learned counsel has referred to section 26 of the UP Ordinance which provides that no election shall be called in question except by an election-petition before the Tribunal constituted under the said ordinance. In this connection, the learned counsel has referred to a number of decisions, in particular, the decision of this Court in the cases of A.F.M. Shah Alam and others, reported in 41 DLR (AD), 68. The learned counsel contends further that not only the civil Court's jurisdiction is ousted in matters of election disputes, but also the extraordinary jurisdiction of the High Court Division under Article 102 of the Constitution is also ousted except on very limited grounds of total absence of jurisdiction or proved bad faith or malice in law. In conclusion, the learned counsel contends, the respondent's suit not being maintainable the impugned order of injunction is totally without jurisdiction and consequently the election held on the strength of the injunction order is void.