LEX/BDHC/0369/2007

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 2119 of 2007

Decided On: 07.06.2007

S.M. Delwar Hossain and Ors.

Vs.
Government of the People's Republic of Bangladesh and Ors.

Hon'ble Judges:
S.A.N. Mominur Rahman and Zubayer Rahman Chowdhury, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Ozair Farooq and S.K. Md. Morshed, Advocates

Subject: Election

Catch Words

Mentioned IN

JUDGMENT

S.A.N. Mominur Rahman, J.

1. The Rule was issued calling upon the respondents to show cause as to why Office Order No.
1146 dated 25-2-2007 circulated under Memo No. 1146/1(8) dated 25-2-2007, issued under the
signature of the respondent No. 3, constituting an Ad-hoc Managing Committee superseding the
existing elected Managing Committee of Bohumukhi Khudra Kutir Shilpa Samabaya Samity Ltd.,
evidenced by Annexure-D to the writ petition, should not be declared to be without lawful authority
and of no legal effect.

2. The Rule is opposed by filing affidavit-in-opposition by the added respondent Nos. 4 and 5. The
petitioners filed affidavit-in-reply there against.

3. The writ petitioners are the elected Members and Office Bearers of the Bohumukhi Khudra Kutir
Shilpa Samabaya Samity Ltd., hereinafter referred to as the Samity. The petitioner No. 1 SM
Delwar Hossain is the President of the Managing Committee, The election was held on 31-7-05.

4. The Samity started functioning with 12 Members Management Committee, whose term expired

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on 6-3-1998 and under the said committee, a new Managing Committee of the Samity was elected
on 6-8-1998 (should be 6-3-1998) for a period of three years, whose tenure expired on 6-3-2001
and that the said elected Managing Committee could not hold the election for electing the next
Managing Committee as per Constitution, because of dispute amongst the members.
Consequently an Ad-hoc Managing Committee with three persons, was formed for a period of 90
days for holding election of Management Committee by the authority vide Memo dated 11-3-2001
and the tenure of the said Ad-hoc Committee was extended up to 30-9-2001. Thereafter, the
authority appointed another Ad-hoc Committee consisting of seven persons vide Memo dated 22-
10-2001 for holding election of Managing Committee within 31-1-2002. The said Committee also
could not hold the election of the Managing Committee and another committee was formed for
holding election vide Memo dated 28-4-2002 and the said Managing Committee published the
voters list on 16-5-2003 fixing the election date on 28-5-2003, but one Md. Shamsul Islam by filing
Writ Petition No. 2520 of 2002 obtained a Rule and restraint order as to the voter list, for which the
election could not be held. Subsequently on 11-5-05, the said Rule was discharged for default and
the restraint order was vacated and in the meantime, Writ Petition No. 5807 of 2004 was filed by
Md. Delwar Hossain and another, challenging the formation of the Ad-hoc Committee by the
authority vide Order No. 3506 dated 26-9-04 and there was no order of stay passed in the said writ
petition. The tenure of the Ad-hoc Committee appointed vide said Memo dated 26-9-2004 expired
on 25-12-2004 and then the Government upon exercising its power under section 4 of the
Cooperative Societies Act, 2001, hereafter referred to as the Societies Act, exempted the Samity
from the operation of section 18(5)(7) of the Societies Act and extended the tenure of the said Ad-
hoc Managing Committee for one year more and that the Rule issued in Writ Petition No. 5807 of
2004 was made absolute vide judgment and order dated 27-6-2005 declaring the managing
Committee as illegal and without lawful authority and the Registrar, Co-operative Societies, was
directed to form a fresh Ad-hoc Managing Committee with Government officials for holding
election in one month and subsequently by filing CPLA No. 444 of 2005 against the aforesaid
judgment and order dated 27-6-2005 an order of stay was obtained from the Appellate Division
and thereafter the CPLA No. 937 of 2005 was filed in due course and the period of stay was
extended and that upon the discharge of the Rule and the order of restraint being vacated in Writ
Petition No. 2520 of 2002 and in view of granting of the stay order by the Appellate Division
staying operation of the judgment and order passed in Writ Petition No. 5807 of 2004, as
mentioned hereinabove, the Ad-hoc Managing Committee, under challenge, by a notice dated 16-
6-2005 convened a Special general of the Samity on 21-8-2005 for holding election of the
Managing Committee of the Samity and that the Secretary of the Managing Committee by letter
dated 12-7-2005 sought approval of three member Election Committee, from the District Co-
operative Officer, Dhaka, who by his order dated 12-7-2005, approved the same, and the said
Election Committee declared the election schedule on 14-7-2005 fixing, voting date on 31-7-2005
and accordingly, published the voters list and that only 12 candidates having submitted nomination
papers against 12 posts, no formal election was held on 31-7-2005 and the said 12 candidates
were declared elected uncontested in the respective posts and the said result was circulated to all
concerned and thereafter the Special of the Samity was held on 21-8-2005 pursuant to the notice

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dated 16-6-2005, and in the said meeting the election result was officially declared and the newly
elected Managing Committee of the Samity entered into office and have been functioning, which
fact was informed to the District Co-operative Officer, Dhaka, by the Samity vide' Memo dated 23-
8-2005 and the said new Managing Committee held an annual general meeting of the Samity on
15-9-2005, wherein 233 general members were present and several decisions were taken for the
development of the Samity. The Writ Petition No. 2520 of 2002 was subsequently restored on 31-
8-2005 subject to holding of election, since in the meantime an election has been held on 31-7-05.
Subsequently, one Md. Shamsul. Islam filed Writ Petition No. 8721 of 2005 challenging the
election result dated 31-7-2005, so far relates to the office of the President, wherein the Rule was
issued on 4-12-2005 and a direction was also issued to the effect that the nature and structure of
the market place of the Samity should not be changed and that the said Writ Petition No. 8721 of
2005 and Writ Petition No. 2520 of 2002 were heard one after another and disposed of by a single
judgment and order dated 23-8-2006, discharging both the Rules together with the interim orders,
and that the writ petitioner of the Writ Petition No. 8721 of 2005 moved the Appellate Division
unsuccessfully with Miscellaneous Petition for Leave to Appeal No. 892 of 2006 with a prayer for
stay of operation of the judgment and order dated 23-8-06 passed in Writ Petition No. 8721 of
2005; and that the Civil Petition for Leave to Appeal No. 937 of 2005, arising out of the Writ
Petition No. 5807 of 2004, was dismissed, since became infructuous, on 15-2-2007.

5. The learned Advocate for the writ petitioner hereof submitted that the Leave Petition No. 937 of
2005 was dismissed on consideration that in the meantime the election of the Managing
Committee was held on 31-7-2005; and that misinterpreting the order passed by the Appellate
Division dated 15-2-2007 dismissing the leave petition and without considering the fact that the
dismissal order was passed since the petition became infructuous because of the election held on
31-7-2005, the District Co-operative Officer, Dhaka, constituted an Ad-hoc Managing Committee
superseding the elected Managing Committee of the Samity, purportedly in compliance to the
judgment and order passed in the Writ Petition No. 5807 of 2004, and the said constitution of the
Ad-hoc Managing Committee is under challenge in the instant Rule.

6. The respondent Nos. 4 and 5 in their affidavit-in-opposition asserted that the Ad-hoc Managing
Committee of 2002 intentionally included the same persons in the voters list in violation of the
mandatory provisions of the Samity's Constitution and the voters list published on 16-5-2002
included the voters in serial Nos. 552 to 634 of the said voters list, not qualified to become
members, for which the Writ Petition No. 2520 of 2002 was filed, wherein Rule and restraint order
was passed on 22-5-2002 and no election could be held with the said voters list and that in
collusion to each other, i.e., the petitioner of Writ Petition No. 2520 of 2002 and of Civil Petition
No. 937 of 2005, held the election dated 31-7-2005 allowing discharge of the Rule for default in
Writ Petition No. 2520 of 2002 and thereafter the Writ Petition No. 2520 of 2002 was restored on
31-8-2005 and that the said election dated 31-7-2005 was held to frustrate the judgment and order
passed by the High Court Division in Writ Petition No. 5807 of 2004 and that the High Court
Division in the judgment and order passed in Writ Petition No. 5807 of 2004 made the Rule
absolute declaring the Managing Committee as illegal and without lawful authority and directing

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the Registrar, Cooperative Societies, for formation of a fresh Ad-hoc Managing Committee by the
Government officials for holding the election within one month from the date of receipt of the
judgment and order and that after the dismissal of the Civil Petition No. 937 of 2005, the Ad-hoc
Committee was formed accordingly, which has been challenged in the instant writ petition. The 12
member Committee formed on 26-9-2004, which held the election on 31-7-05, has been declared
to be illegal and without lawful authority and the said committee resorting to fraud held the said
election to frustrate the judgment and order passed in Writ Petition No. 5807 of 2004. After the
disposal of the Civil Petition No. 937 of 2005 the judgment and order passed in Writ Petition No.
5807 of 2004 revived and came into force and accordingly, the legality of the constitution of the
five member Ad-hoc Managing Committee of the Samity, pursuant to the judgment and order
dated 27-6-2005 passed in Writ Petition No. 5807 of 2004, cannot be called into question and that
the said five-member Ad-hoc Committee having been made pursuant to the judgment and order
passed by the High Court Division, the question of issuance of any show cause notice, as claimed,
does not arise.

7. In the affidavit-in-reply, the facts stated in the writ petition have been asserted and the
statements made in the affidavit-in-opposition have been denied.

8. On perusal of the writ petition and on hearing the submissions of the learned Advocates of the
respective parties, it appears to us that the moot question for resolution is that whether the five-
member Ad-hoc Committee formed in compliance to the judgment and order passed in Writ
Petition No. 5807 of 2004, with Writ Petition No. 8721 of 2005, is in accordance with law or not
and is in force, on the ground, that in the meantime an election was held on 31-7-2005 taking
advantage of the stay order from the Appellate Division in CPLA No. 937 of 2005 and the order of
discharge of the Rule in Writ Petition No. 2520 of 2002 for default.

9. Mr. Md. Ozair Farooq, the learned Advocate appearing for the writ petitioners, submits that the
election dated 31-7-2005 was held in accordance with law and has been approved by the
Appellate Division while dismissing the CPLA No. 937 of 2005, ordering that the same has
become infructuous inasmuch as the operation of the judgment and order passed in Writ Petition
No. 5807 of 2004 was stayed in said CPLA No. 937 of 2005 and thus the Appellate Division taking
cognisance of the election held on 31-7-2005 found that the continuation of the Civil Petition No.
937 of 2005 will be of no effect and since the litigations were for holding an election of a Managing
Committee of the Samity and that the election has already been, held with the "Members of the
Samity without any objection on 31-7-2005 and that the said elected Committee entered into the
office and has been functioning in normal course, which also held the annual general meeting of
the Samity; and that a writ petition was filed challenging the election of 31-7-2005 being Writ
Petition No. 8721 of 2005 and the Rule issued in the said writ petition was subsequently
discharged, against which the writ petitioner thereof unsuccessfully moved the Appellate Division
and thereby the election dated 31-7-2005 continued to function within the knowledge of the
Appellate Division. The learned Advocate then submits that since the election of 31-7-2005 has
not been disturbed by the Appellate Division, the formation of the impugned Ad-hoc Committed by

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the Deputy Registrar of Co-operative Society for holding fresh election is redundant and against
law.

10. The learned Advocate appearing for the respondent Nos. 4 and 5 submitted that the judgment
passed in Writ Petition No. 5807 of 2004, was in existence, when the so-called election was held
on 31-7-05, but the operation of the said judgment and order was stayed, at the instance of the
persons, who were Members of the Managing Committee declared to be illegal, by the High Court
Division. The learned Advocate submitted that Md. Delwar Hossain, the Chairman of the present
Managing Committee, is behind all these things and writ petitioner No. 1 of Writ Petition No. 5807
of 2004 is instrumental in holding the election dated 31-7-2005. The learned Advocate submitted
that the members of the present Managing Committee, this way or that way, are holding the office
of the Management Committee, since its inception and are not allowing holding of any free and fair
election. The learned Advocate submits that since the writ petitioner hereof is aware about the
judgment and order passed in Writ Petition No. 5807 of 2004, wherein the existing Management
Committee was declared to be illegal and without lawful authority, and the members of the said
Management Committee declared illegal in Writ Petition No. 5807 of 2004, having held the
election of 31-7-2005 and the judgment and order passed in Writ Petition No. 5807 of 2004, not
being set aside, or annulled, with the dismissal of the CPLA. No. 937 of 2005, revived and came
into force, and the said judgment of the High Court Division cannot be allowed to be frustrated by
any process and that the impugned Committee having been formed in compliance to the said
judgment and order passed in Writ Petition No. 5807 of 2004, the election of 31-7-05 held by the
Committee, which was declared illegal and without lawful authority by the High Court Division, as
aforementioned, is of no legal effect and has no validity in the eye of law and therefore the said
election is a nullity in the eye of law.

11. Considering the facts and circumstances of the case and having regard to the fact that the
CPLA No. 937 of 2005 was dismissed and thereby the judgment and order passed in Writ Petition
No. 5807 of 2004 revived and remained unaltered and is in force and therefore the judgment and
order passed in Writ Petition No. 5807 of 2004 is binding on the parties. In the instant case, it
appears that the election of 31-7-2005 was conducted at the instance of the Committee, which
was declared to be illegal and without lawful authority by the judgment passed in Writ Petition No.
5807 of 2004, and the said writ petition being mainly for holding of free and fair election of a
Managing Committee of the Samity, the election as held by the said illegal Committee on 31-7-
2005 cannot be said to be bonafide and the election conducted by an illegal authority cannot
sustain in the eye of law. Thus we find substance in the submission made by the learned Advocate
appearing for the respondent Nos. 4 and 5 and we do not find any merit in the Rule.

12. Accordingly, the Rule is discharged without any order as to cost.

The election held on 31-7-2005 is declared to be without lawful authority and of no legal effect and
not valid in the eye of law and impugned Committee as formed, and under challenge in this Rule,
is declared to be in accordance with law and the said five-member Committee is directed to hold

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the election within 3(three) months from the date of receipt of this judgment and order and the
Committee, if necessary, be reconstituted with available government officials. The day-to-day
activities as performed and the expenses made by the Management Committee elected on 31-7-
05 will be valid subject to approval in the annual general meeting to be convened and held by the
new elected Managing Committee, to be elected as per direction of the High Court Division
passed in Writ Petition No. 5807 of 2004.

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