Decided on April 02,1989

Farid Mia (Md.) Appellant
Amjad Ali (Md.) Alias Mazu Mia Respondents


A.T.M.AFZAL,J. - (1.) This appeal by leave is from Judgment and Order dated 8 November 1988 passed by the High Court Division, Sylhet Bench in Writ Petition No. 13 of 1988 making the rule absolute and declaring that the act of declaration of the appellant as elected chairman of No. 10 Laskarpur Union Parishad, Upazila Habiganj by the Returning Officer has been done without lawful authority and is of no legal effect and declaring further that the appellant is disqualified within the meaning of section 7 (2) (g) of the Local Government (Union Parishads) Ordinance, 1983 (hereafter referred to as the Ordinance) and as such he has no right to hold the Office of Chairman of the said Union Parishad.
(2.) The admitted facts of the case as can be gathered from the materials on record are that the appellant, respondent No. 1 and respondent Nos. 8 and 9 submitted papers for election to the Office of Chairman of the aforesaid Union Parishad held on 10. 2. 88. Respondent No. 1 was the sitting Chairman at that time. On the date of scrutiny on 11.1.88 he filed an application for cancellation of the nomination paper of the appellant on the ground that he was disqualified for election under section 7 (2) (g) of the Ordinance being a defaulter in repaying the loan taken from the Bangladesh Krishi Bank, Habiganj. The Returning Officer rejected the application. The respondent then took an appeal to the Upazila Nirbahi Officer which was also rejected. The election was held on 10.2.88 and the Returning Officer declared the appellant to have been elected as the Chairman. When the papers were sent to the Election Commission for the purpose of publication of the names of the Chairman and members in the Official Gazette, respondent No. 1 filed an application before the Election Commission repeating his contention that the appellant was a defaulter, After hearing the parties and perusal of papers, the Election Commission rejected the petition. Then the respondent filed a Writ Petition, No. 683 of 1988, challenging the validity of the election. He, however, withdrew me said writ petition with the leave of the Court for filing the present writ petition (filed on 31.5.88)" by way of quo warranto upon the gazelle notification being made. "The name of the appellant was published in the Official Gazelle on 12 May 1988 but the appellant could not lake me oath as required under the law because of an order of slay obtained in the writ petition.
(3.) As regards the dispute as to whether the appellant was a defaulter in repaying his loans to the Krishi Bank, the respondent relied upon certain informations alleged to have been supplied by the Krishi Bank on request. These were annexed to the writ petition which the appellant had described as concocted and forged. The appellant contended that he had taken a project loan from the Krishi Bank in the name of M/s Lovely Flour Mill which was repaid with interest and no arrear remained outstanding. He also obtained a working capital loan (Cholti muldhan Reen) and paid the entire interest thereon and had applied for renewal of the same before expiry of the loan period but his application for renewal was under consideration. From Annexure 'A' and 'A' (1) to the writ petition, it appears that the Bank admitted that the entire project loan of Tk. 2,94,000/ had been repaid but there was an outstanding due of Tk. 3,74,166/ on account of working capital loan. From Annexure 'D' (1) it appears that the date for repayment of the said loan was. 27.1. 87 but the appellant had already applied for renewal of the said loan (vide Annexure A (1). The appellant also annexed a certificate (Annexure 1) to the affidavit-in-opposition issued by the Manager, Bangladesh Krishi Bank, Habiganj branch on 11.1.88 showing that the project loan had been repaid and there was an application pending for renewal of the current working capital loan, the interest on which had been fully paid.;

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