IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 692 of 2024

IN THE MATTER OF :

An application under Article 102 (2) (a)(i) and (ii) of the Constitution of the People’s Republic of Bangladesh

-And-

IN THE MATTER OF : 

Miah Mohammad Jashimuddin Babul

…… Petitioner -Versus-

Director  General,  Department  of  Co-operative  and others

....... Respondents

No one appears

                 .....For the petitioner Mr. A.B.M. Altaf Hossain, Senior Advocate with

Mr. Rusho Mostafa, Advocate

    ………..for the Respondent No.4

Md. Tushar Kanti Roy, D. A. G. with

Mr. Md. Salim Azad, A.A.G and

Ms. Anis ul Mawa, AAG and

Ms. Nazma Afree, A.A.G

........For respondents

Heard on : 03.07.2024 and

 Judgment On : 25th July , 2024.

Present:

Mr. Justice Mustafa Zaman Islam

&

Mr. Justice S.M. Masud Hossain Dolon

Mustafa Zaman Islam, J;

In this application under article 102 of the Constitution of People’s Republic  of  Bangladesh,  a  Rule  Nisi  was  issued  calling  upon  the respondents to show cause as to why the failure of the respondents to ensure preparation of correct voter list in connection with holding election

of Dhaka Cooperative House Building Society in terms of its order dated 08.01.2024  (Annexure-B)  should  not  be  declared  to  be  without  lawful authority and is of no legal effect and as to why the respondents should not be directed to take necessary steps for preparation of correct voter list by removing the particulars of "dead voters" and removing the particulars of voters whose name appear multiple times prior to initiate holding of the election of Dhaka Co-operative House Building Society within a stipulated period of time and/or pass such other or further order or orders as to this Court may seem fit and proper. 

The facts necessary for disposal of the Rule, in short is that the petitioner is a member of Dhaka Co-operative House Building Society which is duly registered with the office of the respondents. The petitioner, in the capacity of member of the Society filed the instant writ petition to hold free and fair election and enforcement of the order of the respondents. The petitioner under the following circumstances moved the instant writ petition:-

1. the society in question being Dhaka co-operative House

Building Society is required to have election is required to have election  on  a  periodic  basis  in  terms  of  its  constitutional documents and under the relevant law. Accordingly, through an EGM  dated  15.11.2023,  the  management  of  the  Society proceeded to hold election. Subsequently, on 01.12.2023, notice was issued for holding of election.

On 31.12.2023, the Society published an election schedule which contains the relevant dates till publication of the election result.

2. Prior to the publication of the election schedule, the petitioner along  with  another  member  issued  several  letters  to  the respondents seeking intervention from their end in order to hold free  and  fair  election.  The  said  letters  also  set  out  different allegations.
3. It is stated that a draft voter list was prepared which contained the names of same person multiple times and also contained names of dead  persons.  The  office  of  the  respondents  by  order  dated 08.01.2024 as evident as Annexure-B to the writ petition directed the Society and the Committee formed for holding election to correctly prepare the voter list and thereafter, to hold election. Subsequently,  final  voter  list  was  published  and  the  said  list contained the errors which were brought to the attention of the respondents.
4. It is stated that, the petitioner once again requested the respondent to direct the Society and the Committee of the Society to prepare the voter list correctly and then proceed with holding of election. The respondents took no steps and the Society is proceeding to hold the election on the basis of improperly prepared Voter List. This  requires  intervention  from  this  Court  and  hence  the petitioner filed the instant writ petition and obtained the present Rule.

The  respondents  No.  4  has  contested  the  Rule  by  filing  an application for discharging the Rule. His case as set out in the discharging the rule,  in  short is  that  as  per  Rule 26(2) of the Samobay  Samity Bidhimala, 2004 for holding the election of Managing Committee of the Samity, the respondent No. 2 made a Adhoc committee dated 18.12.2023 for period of 3(three) months only for holding election of the management committee, and after taking charge the said ad-hoc committee announced the election scheduled on 31.12.2023 and as per rule 32(1) of Somobay Somity  Bidhimala  2004,  they  published  result  of  uncontested  winning candidates on 29.01.2024 and after completing the election process when they come to know court order dated 23.01.2024 and stayed the further proceedings  of  the  special  General  meeting  by  their  letter  dated  on 01.02.2024.

No one appears for the petitioner in support of the Rule, when it was taken up for Rule hearing. This writ petition has been appearing in the daily cause list for quite a long time but no one appeared for the petitioner though the matter come up for hearing in the list with the name of the learned Advocate appearing for the petitioner. However, Mr. A B M Altaf Hossain, the learned Senior Advocate for the respondent No. 4 submits that the instant case is covered by the decision of the Appellate Division and for that reason this writ petition can be decided by us even without hearing the petitioner.

This writ petition is filed on the following grounds- 

(a) that  voting  right  is  a  sacrosanct  right  and  is  statutory  and constitutionally  guaranteed  and  the  respondents  failed  to appreciate  that  unless  the  final  Voter  List  is  corrected  and election is permitted to be held on the basis of the erroneous final voter list, it would result in holding of an unfair election; such

failure  of  the  respondents  to  pass  necessary  orders  directing holding of election subsequent to preparation of correct Voter list tantamount  to  failure  to  exercise  power  and  without  lawful authority.  (b)  that  the  impugned  failure  of  the  respondents  is without  lawful  authority  and  of  no  legal  effect  in  that  the respondents failed to appreciate that the election can be held only upon absolute compliance of the order dated 08.01.2024.

Mr. A.B.M. Altaf Hossain, learned Senior Advocate with Mr. Rusho Mostafa the learned Advocate for the Respondent No. 4, he submits that pendency of the writ petition election process was concluded by announce the winning candidates as per rule 32(1) of Somobay Somity Bidhimala 2004 and when the previous committee and new the elected Members could  not  called  General  Meeting  and  due  to  expired  of  the  previous interim(Adhoc)  committee,  the  respondent  No.2  formed  a  new interim(Adhoc)  committee  for  conduct  regular  activities  and  delegating responsibility to elected committee vide dated 08.04.2024 and as such, the rule of the instant writ petition has became in-fructuous and thus the rule may kindly be discharged as being in-fructuous.

We have considered the submissions of the learned Advocate for both the sides, perused the impugned proceedings, supplementary affidavit and an application for discharging the Rule.

The moot question to be resolved in the question, the Rule is whether has become infructious or not.

It appears that Rule was issued and to pass an order of direction to ensure preparation of the new and correct votor list for the purpose of holding  the  election  in  question.  In  the  meantime,  the  proceeding  of holding of the election of Dhaka co-operative house building society was stayed till preparation of such voter list and also further directed to hold election after correction of voter list in accordance with law. As could be seen that the applicant respondent No. 4 have been performed their duly by ensure the new and correct voter list dated 09.01.2024 for holding the election in question, and election commission published final candidate list on 25.01.2024, then they published a list of valid candidates on 27.01.2024, finally the election commission published list of result uncontested winning candidates on 29.01.2024 as per Rule 32(1) of Bidimala, 2004.

Considering the above discussion, the Rule being devoid of merit is bound to fail.

Accordingly, the Rule is discharged. The earlier order of direction at the time of issuance of the Rule is hereby recalled and vacated.

Communicate the judgment and order at once.

No order as to costs.

S.M. Masud Hossain Dolon, J:

I agree.