P L D 1961 Dacca 195 (PLP)

AKBAR, J.‑The facts are as follows : The election of the President, Vice‑President and Members of Kutirhat Union Board was held on the 16th May 1958, in accordance with the provisions of the rules framed under the Bengal Village Self‑Government Act. The petitioner, who was a candidate for the Presidentship, and who secured highest number of votes, was declared elected by the Presiding officer. The result of the election was, however, not published in accordance with the provision of the rule.

2. On the 13th June 1958, the Circle Officer, Feni, issued a notice that a fresh election including that of the President will be held on the 23rd June 1958. On 18th June 1958, the Circle Officer sent the following Memo. No. 102‑C.O. to the petitioner. "It has been brought to my notice that the two School buildings of two Polling Stations have been blown away by the cyclone of 18th May 1958, and that election cannot be held in those two premises at present, the date faxed for fresh election on 23rd June 1958, is hereby cancelled. You are, therefore, directed to return the notice to me at once announcing the cancellation of the date. Further date will be announced later on. In this connection it appears to be strange that you being the President of the Union did not bring the present condition of the School premises to my notice inspite of the fact that you received the notice for fresh election on ‑13th June 1958, personally. It can be presumed that the concealment of the fact was intentional and motivated. Please explain the reason by 21st June 1958."

3. According to petitioner, this order for fresh election of the President and the Memo. No. 102 C.O., dated 18th June 1958, were issued by the Circle Officer at the instance of one Abdul Jabbar Khaddar who was not well disposed of towards the petitioner. He, therefore, gave notice asking the Government to cancel the notice, dated 13th June 1958, as well as the Memo. No. 102‑C. O., dated 18th June and failing to get any reply moved this Court, and obtained this Rule calling upon the respon dents to show cause why a writ in the nature of mandamus or any other appropriate Writ should not issue directing them to forthwith cancel, withdraw and/or rescind the notice, dated the 13th June 1958, and the letter, dated the 18th June 1958, issued by the Circle Officer to him.

4. Mr. A. A. M. Yusuf, Circle Officer, Feni Circle, in paragraph 3 of his affidavit‑in‑opposition, has given the reason for ordering fresh election as follows : "That with regard to the allegations made in paragraph 6 of the petition to the effect that the election of the President was conducted according to rules, and there was no irregularity in the conduct of the said election are wholly wrong, that serious irregularity affecting the election of President took place inasmuch as the ballot boxes of two other candidates for membership, namely, Maulvis Azizulla Master and Waziullah Master could not be placed in the following booths at the time of election through the bona fide mistake of the additional part- time clerk of the Circle Officer, Feni and, as such, there was gross violation of Rule 19 of the new U. B. Election Rules which envisages that election must be held simultaneously in all the Wards of the Union and for all the posts." He then says in paragraph 5 : "That with regard to the allegations made in paragraph 10 of the petition, I say that as the election was not held in accord ance with law, and as there was serious irregularity in the conduct of the said election from the very inception, this deponent as the Circle Officer after being fully satisfied from the reports of the Presiding Officers and from other relevant facts and circumstances as to how the mistake was committed by the additional part‑time clerk in not supplying the names of Azizullah Master, Waziulla Master and their respective symbols to the respective Presiding Officers of the Polling centres, deemed it proper to issue fresh notice for election of all the offices simultaneously ; that this deponent submits that the Circle Officer is ‑the final authority to determine whether a particular election has failed or not held according to rules and this deponent further asserts that this deponent acted within his rights and jurisdiction when this deponent issued the notice in question on 13th June 1958. Incidentally, it may be added that such re‑elections were to be held by the 30th June 1958, positively, if the existing voters' list was to be utilised for such re‑election."

5. From the above, it is clear that there was an irregularity only in the election of Members. The learned Advocate‑General, appearing for the respondents, has not been able to point out any irregularity so far as the election of the President is concerned.

6. Now, the question is : whether, because of this irregula rity in the election of Members, the Circle Officer was justified in ordering a fresh election of the President as well 7 The Circle Officer, in his letter dated 13th May 1958, to the S. D. O. (F), which is annexure `B' to the affidavit‑in‑opposition, recommended fresh election as follows "The Union Board election of No. 1 Kutirhat Union of Sonagazi P. S. was held on 10th April 1958 ; unfortunately through mistake the names of one Azizulla Master of `A' Ward and one Waziullah Master of `C' Ward were not shown in the list of candidates for membership supplied to the Presiding Officer concerned. The symbols of these candi dates were also not supplied with the election materials. As a result, the Members' election of `A' and 'C' Wards were held without placing the boxes of the above two candidates. In this connection rule 19 and the proviso to Rule 19 may please be perused. It is to be decided whether Member election of `A' and `C' Wards was not held or failed. If it is a case of failure of Member election of 'A' and `C' Wards, a re‑election for the offices of Members only has to be held in respect of the two particular Wards. If, however, it is a case of 'no election' of Members in those Wards, a fresh election for whole Union will have to be held since rule 19 gives emphasis on the term `simultaneously' occurring in rule

19. Some candidates for Presidentship, Vice‑Presidentship and Membership submitted a representation (enclosed) stating that a large number of voters did not turn‑up under the impression that there will be re‑election. I agree with the remarks "I am of opinion that it made by C. O. (F) in the last para. is a case of `no election', of Then re‑election should take members and so fresh re‑ place for all the offices. Election for all the offices should be held to provide for simultaneous election in all the Wards as per rule. An Sd. Illegible, enquiry is being made to fix S. D. O. (F) up responsibility for the 14‑5‑58. mistake."

7. The note on the margin of the above letter shows that the Sub‑divisional Officer agreed with his recommendation, and thereafter notice was issued for fresh election. Rule 19 of the Rules for Election of Members, Vice‑Presidents and Presidents of the Union Boards as amended by Notification issued in the Dacca Gazette, Extraordinary of March 8, 1958, anJ under which the Circle Officer purported to act is as follows "

19. Dates etc., of Polling ‑The election in all the Wards of a Union shall be held simultaneously on the date fixed under clause (c) of rule 10, between such hours and at such place or places (hereinafter referred to as Polling Station, within the respective Wards of the Union as may be fixed by the Circle Officer. The place or places at which and the hours between which the voters will attend for the purpose of casting their votes shall be notified within the Union by publication of notices, and by beat of drum at the time of publication of the list of candidates published under rule 17 : Provided that if there is failure of election of either Members, Vice‑President and President or any of them in a Polling Station, a re‑election shall be held for the particular office or offices in respect of the area covered by that Polling Station on the date fixed by the Circle Officer."

8. Mr. K. Hossain, the learned Advocate for the petitioner, has argued that, in view of the proviso, the Sub‑divisional Officer or the Circle Officer had no jurisdiction for ordering fresh election of the President. As stated before, there was no irregularity in the election of the President, and after counting of votes this petitioner was declared elected by the Presiding Officer. This rule 19 provides for holding of election simultaneously in different Wards. The proviso clearly lays down that ; " .if there is failure of election of either Members, Vice‑President and President or any of them in a Polling Station, a re‑election shall be held for the particular office or offices in respect of the area covered by that Polling Station on the date fixed by the Circle Officer." In other words, it empowers the authorities to hold election of the particular office or offices in respect of which the election has failed. In view of the clear and unambiguous terms of this proviso, the learned Advocate‑General has been candid enough to say that the views of the Circle Officer cannot be supported. It is really regrettable that the Sub‑divisional Officer failed to appreciate the clear language of the proviso. If they entertained any doubt as to the interpretation of this proviso, they should have referred the matter to the Law Department of the Govern ment. Instead of doing that, the Circle Officer interpreted the section according to his own sweet will, and the Sub‑divisional Officer accepted the interpretation without applying his mind. It is needless to say that this caused inconvenience not only to the petitioner but also to others. In future this officer will be well- advised to leave the interpretation of the statute and the rules to the Law Department of the Government.

9. The next question is : To what relief the petitioner entitled to in this case ? From the petition it appears that this petitioner was convicted on 30th January 1956, under section 406/ 409, P. P. C., and sentenced to pay a fine of Rs. 1,000, in default, to suffer rigorous imprisonment for six months. On appeal the High Court, while confirming his conviction, reduced the sentence to a fine of Rs.

600. He then obtained special leave to appeal to the Supreme Court. The said appeal was dismissed for his failure to put in the Paper‑Book costs. He then filed an applica tion for restoration of the appeal. The learned Advocate informs me that the said application has also been dismissed. Now, section 10‑A of the Bengal Village Self Government Act, 1919, provides : "10A. A person shall not be eligible for election or appoint ment as member of a Union Board if such person‑ (a) is an officer or servant of the Union Board, or (b) has been ordered to execute a bond in pursuance of pro ceedings under section 110 of the Code of Criminal Procedure, 1898, or has been convicted by a Criminal Court of any offence which in the opinion of the Provincial Government involves moral turpitude, and which carries with it a sentence of tran sportation or imprisonment for a period of more than six months, unless the offence for which he was convicted has been pardoned or five years have expired from the date of the expira tion of the period specified in the bond, or of the sentence, as the case may be : Provided that, an application made by a person disqualified under clause (b), the Provincial Government may remove the disqualification by an order made in this behalf." It is thus clear that this petitioner was not eligible to offer himself as a candidate for the election of the President. Mr. K. Hossain, the learned Advocate for the petitioner, has contended that mere conviction would not disqualify a voter from offering himself for election. He has argued that acceptance of nomination paper implied that the Government did not consider the offence of the petitioner as one involving moral turpitude. We are unable to accept this contention of learned Advocate. There is nothing to show that the Government, while accepting his nomination paper, was aware of his conviction under section 406/409, P. P. C. That the above offence involves a moral turpitude has not been challenged by the learned Advocate. We, therefore in view of section 10‑A of the Act, hold that this petitioner was not eligible to stand for election as a President. It is true that this point was not taken by the respondents in their affidavit‑in -opposition. But a Court, while exercising the equitable and discretionary, jurisdiction, cannot ignore a fact which has come to its notice, and if such fact made the grant of relief by way of writ inappropriate it should desist from granting such relief Any order by the Court in the petitioner's favour in terms o the relief prayed for would make a disqualified person President of the Union Board. This the Court should not do.

9. For the above reasons, we are unable to grant any relief to the petitioner.

10. The petition is accordingly dismissed and the Rule is discharged but without any order as to costs. KHAN, J.‑I agree. K. B. A. Petition dismissed.