P L D 1965 Dacca 263 (PLP)

In support of his claim that the Delimitation has been effected mala fide, it is stated that one Naimuddin Ahmed is the Head Clerk of the Delimitation Officer and he is helping the rival group of the petitioner and has influenced the authority in delimiting the Unit in question according to the convenience of the petitioner's rival group. An affidavit‑in‑opposition has been affirmed by Mr. H. T. Imam, Sub‑Divisional Officer, Narayanganj and Delimitation Officer of the area concerned. In the affidavit‑in‑opposition it is stated that Ward No. 1 has not been disturbed and made Unit No. 1 in the present delimitation. It is further stated:‑ " That it is untrue to state that Unit No. 1 has half the population. The total population of the entire Union is taken as 8,828 according to 1961 census but the petitioner wants to submit that there was increment of population and it should be considered for which however there is no authentic proof. It is not true that the delimitation has no basis. On the contrary basis was supplied by the Chairman, Narayanganj Municipality." It is further stated:‑ "That even if there was at all any increment of population as alleged by the petitioner it must have been the floating popula?tion and not the actual residents and there was no documentary and authentic proof." It was further asserted in the said affidavit‑in‑opposition that the figures were verified and the population of the Unit was only 1,

407. It has further been claimed that the delimitation has been effected in accordance with law and there has been no illegality in carrying out the requirement of law in this behalf. Mr. Meser Ali, the learned counsel for the petitioner, submits that the mandatory provision of subsection (2), section 6 of the Electoral College Act, 1964 (hereinafter called the Act) has been violated. His contention is that although the expression "so far as practicable" occurs in the section but it was practicable in the case to maintain distribution of population in accordance with the limit prescribed by the authority and as such the disregard of the same has constituted violation of the statute. We have already held in Writ Petitions Nos. 407 and 40 of 1964 that the requirement of law in respect of population is directory in nature. The provision is to the effect that electoral units within an area shall be delimited. In doing so, regard shall be had to the territorial Unity and, so far as practicable, to ‑distribution of population. It means that in delimiting the units, the authorities concerned are to bear in mind the question of distribution of population as far as possible. We have also held that the degree of consideration is not the same as in the case of territorial unity. It is true that when a provision of law requires execution of a matter in a specified manner, will of the Legislature should be carried into effect. It is not in the statute merely for the purpose of decoration. Apart from the question that non‑compliance with a provision of law which is directory nature would not have the effect of rendering the act itself illegal, it is clear that there is no absolute command relating to distribution of population. The point of law pressed by Mr. Messer Ali will, however, arise only when certain issues of fact have been established. This brings us to the question as to whether the circular regarding the distribution of population has, in fact, been violated. In support of the contention that it has been dis?regarded, Mr. Messer Ali has drawn our attention to the census report which shows that the population of the Union Committee is 8,828 and he claims that half of the population is in this unit itself. But this claim has been denied in the affidavit‑in‑opposition in paragraph 24 in the following terms:‑‑ "That this deponent states the Unit No. 1 does not consist of 4,000 people. The allegation is not correct for the reasons stated above." In paragraph 20 of the said affidavit‑in‑opposition it has been stated. "The population figure by the Delimitation Officer is correct." When this conflicting nature of evidence in regard to the population was pointed out to Mr. Meser Ali, he referred to the list of voters as published for the Unit concerned and he claims that the total number of the voters of the Unit is 1,

786. It is stated in the affidavit‑in‑opposition:‑ "The number of voters in Unit No. 1 is more because that being an Industrial Area all are adults and many do not live there but work for gain and as such entitled to become voters as per sections 8 and 10 of the Electoral College Act, 1964." On reference to subsection (1) of section 10 of the Electoral College Act, 1964, it is? found that a person "shall be deemed" to be a resident of an Electoral Unit if he works for gain in that Unit and that although he is not a resident, he may be a voter and for the purpose of his being a voter, a person who works in that area for gain shall be deemed to be a resident of that area. Therefore the number of voters would be no clear indication so far as exact population of the are is concerned and it is the case of the petitioner also that it is an Industrial Area. This area must have, in the nature of things, a floating population, In any case it is difficult to hold in view of the conflicting claims as to what is exact popula?tion of the Unit concerned. This petition under Article 98 of the Constitution is based on disputed question of facts which cannot be resolved by means of affidavit and as such it is liable to be rejected on that ground alone. We have sufficiently indicated that the two versions are contradictory and no con?clusion, on fact, can be reached in this case on affidavits. Petitioner made a grievance that he was not given a hearing by the Delimitation Officer after it was remanded to him by the Appellate Authority. The petitioner was given a hearing by the Delimitation Officer and also by the Appellate Authority. He, therefore, cannot claim as a matter of right further hearing. In view of hearing given to him on two occasions, we are of opinion that there has been no violation of the principle of natural justice in this case. The contention of the petitioner that the delimitation has been effected mala fide as the Head Clerk of the Delimitation Officer has influenced the Delimitation Authority has been stoutly denied in the affidavit‑in‑opposition in the following terms:‑ "It is not possible for any clerk to influence the Authority to do any act the suggestion is preposterous. It is not known to the Delimitation Officer to which party who belongs. On enquiry now it is found that the clerk named is the 1st cousin of the petitioner Mainuddin Ahmed and it is not known what grudge he may have against the petitioner." On the materials placed before us, we are unable to hold that the Delimitation Officer has acted mala fide. The petitioner has totally failed to prove his allegation of mala fide. No other point having been pressed before us, the Rule is discharged. Having regard to the facts and circumstances of the case, we leave the parties to bear their own costs. ABU MD. ABDULLAH, J.‑--I agree. Petition dismissed.