Akhtar Hossain vs Government of Bangladesh and Others
Citation: 45 DLR (HCD) (1993) 382
Jurisdiction : Bangladesh
Petitioner: Akhtar Hossain
Respondents: Government of Bangladesh and Others
Facts :
The petitioner, the ex-chairman of Vitikandi Union Parishad and a candidate for the coming Upazila election, challenged Gazette Notification No 630 dated 20 June 1991. The Gazette divided the former Vitikandi Union Parishad with its thirty one villages into Vitikandi Union Parishad and Kalakandi Union Parishad, showing populations of eighteen thousand two hundred twelve and fourteen thousand two hundred fifty four persons. The petitioner claimed these figures were wrong.
He stated that the bifurcation was made in violation of Rule 2 sub rule 1 clause b of the Declaration and Alteration of Limits of Union Rules 1983 because no notice, no preliminary list, and no invitation for objections within seven days were given. He relied on Annexure E from the Upazila Statistics Office as the correct population record.
He filed the writ under Article 102 clause 2 of the Constitution and questioned the Gazette in light of Sections 88 and 114 (c) of the Evidence Act, 1872. He had also filed an appeal to the Divisional Commissioner marked as Annexure F, but it was filed five months after the Gazette and did not mention Annexure E. He therefore asked the Court to declare the Gazette without lawful authority.
Issues :
1. Whether the bifurcation in Gazette Notification No 630 was made in violation of Rule 2(1)(b) of the Declaration and Alteration of Limits of Union Rules 1983.
2. Whether the writ was maintainable when the petitioner did not file the required appeal within the seven day period under Rule 2(3) and Rule 2(4).
3. Whether the Gazette enjoyed the presumption of regularity under Sections 88 and 114 clause c of the Evidence Act of 1872 and whether the petitioner gave enough material to challenge that presumption.
Arguments :
Petitioner’s Arguments:
The petitioner argued that Gazette Notification No 630 was issued without following Rule 2 sub rule 1 clause b of the Declaration and Alteration of Limits of Union Rules 1983, since no notice was given, no preliminary list was published, and no objections were invited within seven days. He relied on Annexure E from the Upazila Statistics Office to show that the population figures in the Gazette were incorrect. Additionally, in his subsequent writ petition, he claimed that the Gazette lacked lawful authority. In it, he stated that Sections 88 and 114 clause c of the Evidence Act of 1872 should not protect the Gazette, because the required procedure under Rule 2 was not followed, and therefore the presumption of regularity did not apply.
Respondent’s Arguments:
The respondents stated that Gazette Notification No 630 was issued by the Deputy Commissioner under Rule 2(6) of the Declaration and Alteration of Limits of Union Rules 1983 after completing the required formalities. They relied on Sections 88 and 114(c) of the Evidence Act of 1872 to assert that official acts are presumed to be regular. They also argued that the petitioner did not use the appeal process under Rule 2(3) and Rule 2(4) which required an appeal within seven days, and instead filed Annexure F five months later without mentioning Annexure E. They stated that the writ under Article 102(2) of the Constitution was not maintainable and that disputed facts such as population figures cannot be examined in writ jurisdiction.
Decisions :
The Court held that the petitioner’s challenge could not succeed because the dispute about population figures required evidence and could not be examined under Article 102 clause 2 of the Constitution. The Court found that the petitioner did not use the statutory appeal process under Rule 2(3) and Rule(4) of the Declaration and Alteration of Limits of Union Rules 1983, since his appeal was filed five months after the Gazette Notification.
Relying on Sections 88 and 114 clause c of the Evidence Act of 1872, the Court stated that official acts are presumed to be regularly performed and that there was no sufficient material to rebut this presumption. The Gazette was issued by the Deputy Commissioner under Rule 2(6), and the Court saw no ground to question its validity.
The writ petition was therefore summarily rejected.
Relevant Laws :
- The Evidence Act,1872
- Section: 88, 114 (c)
- The Constitution of the People’s Republic of Bangladesh
- Article: 31, 44, 102(2)(a)(i), 102(2)(a)(ii), 111
- Declaration and Alteration of Limits of Union Rules, 1983
- Rule: 2(1)(b), 2(3), 2(4), 2(6)
Author :
1. Md. Fuad Hasan
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