LEX/BDHC/0317/2009

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 5200 of 2008

Decided On: 28.07.2009

Anwar Sadat Sarker and Ors.

Vs.
Secretary, Ministry of Commerce and Ors.

Hon'ble Judges:
Shahidul Islam and Syeda Afsar Jahan, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: AM Aminuddin and Saifuddin Mohmood, Advocates

Subject: Election

Catch Words

Mentioned IN

JUDGMENT

Shahidul Islam, J.

1. This Rule was issued calling upon the respondents to show cause as to why the impugned
notice dated 12-5-2008 (Annexure-H) directing the Board of Directors of the Gazipur Chamber and
Commerce and Industry of extend the time of election of the year 2008-2009 should not be
declared to have been issued without lawful authority and is of no legal effect and or pass such
other or further order or orders passed as to this Court may seem fit and proper.

2. Facts relevant for disposal of the Rule as per Writ Petition is that for holding election of the
Gazipur Chamber and Commerce for the year 2008-2009 a meeting was convened on 6-2-2008
for appointing Election Board and Appeal Board as per the provision of Article 16A of the Articles
of Association of Gazipur Chamber and Commerce and Industry and the Board could not take
decision regarding appointment of Election Board and Appeal Board as there was no time in that
for discussion upon the agenda and the group and 2 from the associate group, there remain only
18 nomination paper for 18 posts i.e. 1 against 1 post so there was no necessity of holding
election as there was no contestant and, as such, all the directors have been elected uncontested
on 20-4-2008. Since on the date of withdrawal there were only 18 candidates, the Election

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Commission was left with no other choice but to declare them elected as per law. Thereafter on
10-5-2008 as per the schedule, the Election Board elected the President, Senior Vice President
and Vice President from the elected directors and published the result of the election on 10-5-2008
and circulated the result of the Election on 10-5-2008 and circulated the result to all concerned.
Since there was no objection against the result, the same become automatically final on 17-5-
2008. The newly elected committee assumed the office of Chamber on 25-5-2008 as per the
provision of clause 1(4) of

The annual general

meeting could not be held due to order of injunction in an appeal filed by the former Senior Vice
President which was ultimately dismissed. The injunction application was heard by the learned
Assistant Judge, 5th Court, Gazipur, and by the order dated 15-4-2008 rejected the application for
injunction (Annexure-L to the Supplementary Affidavit). Against the said order dated 15-4-2008
passed by the learned Assistant Judge, 5th Court, Gazipur the plaintiff filed an appeal being
Miscellaneous Appeal No. 22 of 2008. After filing the appeal the said appellant obtained ad-interim
order of injunction which was ultimately dismissed. The learned Additional District Judge, 1st
Court, Gazipur by the order dated 31-8-2008 dismissed the appeal. Subsequently the suit was
also dismissed (Annexure-M to the Supplementary Affidavit).

3. It is alleged that thereafter the respondent No. 2 by the impugned Memo No.
dated 12-5-2008 extended the period for holding election extending
120 days from, 4-6-2008 (Annexure-H).

4. Being aggrieved by the impugned Memo the petitioners have moved before this Court by filing
writ petition and obtained the instant Rule.

5. By filing supplementary affidavit it is asserted that the petitioner No. 1 was elected as President,
the Petitioner No. 2 was elected as Senior Vice President and the Petitioner No. 3 was elected as
Vice President of the Chamber in the said meeting and, as such, they are interest in the matter.

6. It is submitted that the respondent No. 2 served the impugned notice on 12-5-2008 with mala
fide intention and with ulterior motive and the said notice is illegal, void, mala fide and without
lawful authority. It is further submitted that after holding of election and after assuming office by the
newly elected committee the impugned notice served on 12-5-2008 by the respondent No. 2 is
unlawful. It is further submitted that the fundamental rights of the petitioners have been infringed
by the impugned notice and, as such, the petitioners have been constrained to move this Court by
filing the writ petition.

7. The Respondent No. 5 entered appearance and contested the Rule by filing an Affidavit-in-
Opposition denying the material statements made in the Writ Petition. The Respondent No. 2 also
entered appearance and contested the Rule by filing an Affidavit-in-Opposition. The respondent

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Nos. 2 and 5 have denied the statements made in the Writ Petition and contended that he was
elected as President of Gazipur Chamber of Commerce and Industry for two years and the
election was held on 20-5-2006 (Annexure-X to Affidavit-in-Opposition). The Board of Directors of
the Chamber held a meeting on 6-2-2008 to constitute the Election Board and Appeal Board to
hold the election of directors for the year 2008-2009 and ultimately that meeting was adjourned till
13-2-2008. On 13-2-2008 the Board could not constitute the Election Board and Appeal Board
and, as such, could not fix up the date of election. No election of the Chamber for the term 2008-
2009 was held and no election Board or election Appeal Board was formed by the Board of
Directors of Chamber. It is stated that while one Md. Rafiquddin Ahmed was distributing the notice
of election and the election schedule amongst the members of the Gazipur Chamber of
Commerce and Industry, the Respondent No. 5 published a notice in the daily Jugantor on 6-2-
2008 and informed all concerned that the Chamber did not constitute any such Election Board and
Election Appeal Board. It is asserted that the election of Chamber for the year 2008-2009 has not
been held, the respondent No. 2 upon an application of the respondent No. 5 extended the time of
election for 120 days up to 4-10-2008. It is asserted that the said extension of time was made
lawfully and the rule is liable to be discharged. The respondent No. 2 in its Affidavit-in-Opposition
brought a fact that it is stated that notice was served by the Director of Trade Organization (DTO)
on 12-5-2008 for extension of time of election 2008-2009 as per section 8A of Trade Organization
Ordinance, 1961. It is further stated that the respondent No. 5 is the elected President of Gazipur
Chamber of Commerce and Industry for 2007-2008 and the tenure of the executive committee
was supposed to expire on 3-6-2008 Respondent No. 5 sent a request letter to the Ministry
appealing to extend the time of the election of Gazipur Chamber of Commerce and Industry for the
year 2008-2009 because of the then political situation in the country and some internal problems
of the Chamber. The DTO has extended the time for a free and fair election and for proper
representation of the voters. It is submitted that the so-called election was illegal and committee
was formed without any information to the Ministry and the election was conducted without the
permission of the elected President of the Chamber. The executive committee headed by one Mr.
Anwar Sadat Sarker is illegal and he has no legal right to seek any remedy.

8. Mr. A.M. Aminuddin with Mr. Saifuddin Mahmood, the learned Advocates appeared for the
petitioners Mr. A.M. Aminuddin took as through the impugned order (Annexure-H) and the
schedule of election published on 18-2-2008 (Annexure-C) and other Annexures. He submitted
that the schedule of election was published as per the Rules and procedure after forming election
board and election appeal board. He submitted that the schedule of election was published
publicly and on the day of withdrawal on 20-4-2008 some of the candidates withdrew their
nomination papers and accordingly there remained only 18 candidates in 18 posts and, as such,
the election was concluded uncontested declaring 18 candidates as elected. As per clause 1(4) of
the

as per Rules the newly elected

committee will automatically assumed the office, if annual general meeting is not held. He further

2020-09-20 Source: www.bdlex.com Md. Nazrul Islam Khan

submitted that the impugned order was passed extending the period of election long after holding
the election and, as such, the impugned order extending time has been made illegally and without
having any lawful authority.

9. Mr. A.K.M. Badrudduza, the learned Advocate appearing for the Respondent No. 5 made the
following submissions:

(i) the schedule of election has not been served upon the members as required under Rule 15(2)
of the Trade Organisation Rules, 1994;

(ii) the petitioners have concealed their own election schedule by declaring the result of election on
10-5-2008 instead of schedule date fixed on 17-5-2008;

(iii) the Gazipur Chamber of Commerce and Industry is not a party in the Writ Petition and, as
such, the Rule is liable to be discharged for non-joinder of necessary parties and submitted that
the Rule is liable to be discharged.

10. We have considered the submissions made by the learned Advocates. We have gone through
the, Writ Petitioners, Affidavits-in-Opposition filed by the Respondent Nos. 2 and 5 and the
annexures annexed thereto.

11. Apart from the cases, made out by the parties, it is admitted that challenging the subject matter
of the Writ Petition a suit was instituted in the 5th Court of Assistant Judge, Gazipur being No. 661
of 2008 and an application for injunction was made for restraining the Petitioners from holding
annual general meeting and prayer for injunction was refused. That order was challenged by
filing a Miscellaneous Appeal No. 22 of 2008 before the learned District Judge, Gazipur. That
appeal was heard by the learned Additional District Judge, 1st Court, Gazipur who although
initially allowed the prayer for ad-interim injunction but ultimately dismissed the appeal and
vacated the order of injunction accepting the fact that election was held. Thereafter plaintiff of that
suit did not challenge that order before this Court. Ultimately that suit was dismissed.

12. Mr. A.K.M. Badrudduza, the learned Advocate for the respondent No. 5 although raised some
valuable and important points before us for consideration but since the subject matter of the Rule
had already been challenged before a civil Court by one of the members of the chamber and that
matter was ended with the dismissal of the suit, the said judgment and order of dismissal will
operate as res judicata against the instant Rule.

13. It further appears that a schedule of election was published (Annexure-C to the Writ Petition).
Whether the notice was served upon the members under Rule 15(2) of the Trade Organisation
Rule, 1994 is a question of fact and that cannot be decided by this Court in writ jurisdiction. It is
too late to raise the question before this Court.

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14. From the materials on record it is evident that after the process of election was over before the
impugned order was passed extending time.

15. In view of the above it is needless to say that the impugned order was passed without having
any lawful authority inasmuch as there remained nothing after declaration of result of election,
uncontested.

16. From the facts and circumstances and discussions made above we find merit in the Rule.

In the result, the Rule is made absolute, however, without any order as to costs. The impugned
Memo No. dated 12-5-2008 extending the period of holding election
for 120 days from, 4-6-2008 (Annexure-H) is hereby declared to have been made without lawful
authority and is of no legal effect.

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2020-09-20 Source: www.bdlex.com Md. Nazrul Islam Khan