Representation of the People Order, 1972
Article 12(1)(c)-In absence of any express provision of law or a decision of a competent court the Commission appears to have come to its own interpretation by analogical deduction and chose to issue the notice questioning the right of an MP to remain in his office. Such an interpretation of law by the Commission is not only beyond its power but also unknown to law. Shafiqul Azam Khan (Md) vs Election Commission, 65 DLR 387
Clause(m) of the provisio to Article 12(1)
Clause (m) quoted above reveals that the words 'who' and the expression 'any loan or any installment taken by him' are confusing. In the literal meaning, the words 'who' and 'him', ordinarily refer to a natural person or an individual. In literal meaning, Clause (m) would mean that if 'the director' of a company him self or 'a partner' of a firm himself has taken a loan and defaulted in paying the loan he is disqualified. Such a literal in- terpretation is ridiculous. In that event such a loan would be a personal loan ir- respective of that person's status as a di- rector of a company or a partner of a firm. The disqualification enumerated in the proviso to Article 12(1) shows that the personal loan of an individual has been separately dealt with in clause(1). The intention of clause (m) is to provide for a situation where a company (or partnership firm) takes loan, and the loan is defaulted by the company (or the firm), and in such a situation, every di- rector of the defaulter company (or part- ner of the firms) comes within the mischief of the disqualification. This is a glaring drafting mistake in clause(m). Explanation-V makes the mistake clearer in its words "A person or a com- pany or firm shall be deemed to have defaulted in repaying a loan or an in- stallment thereof referred to in sub- clauses(1) and (m)....." So the words 'who' and 'taken by him' occurring in clause (m) are to be read as 'which' and 'taken by it' respectively. Md. Abul Kashem vs. Mahmudul Hasan (Syed Mahmud Hossain J) (Civil) 10 ADC 631
Articles 49 & 65-- In the facts of the instant case the question which needs to be answered is whether or not the appellant had any other avenue open to him to redress his perceived grievance; more precisely, whether he could have availed the Election Tribunal forum. The Election Tribunal has jurisdiction to hear all election matters so long as the applicant qualifies under provisions of the Representation of the People Order, 1972 (R.P.O. 1972) It has been held by this Division that the election process starts from the notification issued by the competent authority declaring the election schedule and culminates in the declaration of result of the election by a gazette notification. We are of the view that the appellant has remedy under the R.P.O. 1972. which would be available to him after the election takes place. Hence, Appellate Division does not find any illegality or infirmity in the impugned judgment and order of the High Court Division, and accordingly, the appeal is dismissed, without however, any order as to costs. ..... Bangobir Kader Siddiqui -VS- Chief Election Commissioner. [3 LM (AD) 169]
Article 49(1) with Section 2(ii)- The most significant thing is that for the purpose of filing an election petition under article 49(1) of the RPO only the phraseology "candidate" has been used. In other words, a proposed "candidate" has been given the locus standi to file an application raising an election dispute. Admittedly the candidature of the election- petitioner was rejected by the Election Commission on the ground of being a defaulter, he is surely a person who was proposed as a candidate for election as a member of the Parliament of the Constituency in question. But the High Court Division failed to comprehend the proper meaning of "candidate" given in section 2(ii) of the RPO vis-à-vis article 49(1) thereof in observing that "the petitioner being a candidate of the 10th National Parliamentary Election did not act rather he was an intending candidate and wanted to become a candidate." And we hold that the petitioner being a proposed "candidate" for election as a Member of the Parliament for the Constituency in question, he had every locus standi to file the election petitions and those were maintainable in law...... Major Gen. Abdus Salam (Rtd) VS Bangladesh Election Commission & another, [1 LM (AD) 192]
Representation of the People Order, 1972
Article 63(1) (b), (c) & 12(1) (n)- Defaulted in paying Telephone bill- The provisions of clause (b) of Article 63(1) attracts clause-(n) to the proviso of Article- 12(1) of the RPO. Therefore, the High Court Division came to a correct finding that the appellant defaulted in paying telephone bill and that accordingly, he was disqualified from being elected as per clause (n) of proviso to Article 12(1) of the RPO. It is important to note here that if the allegation brought by respondent No.1 was within the ambit of the provisions of clause- (c) to sub-article (1) of Article-63 then the High Court Division would be required to give a finding that because of corrupt or illegal practices committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent, the result of the election has been materially affected. But in the case in hand such a finding in not necessary because sub- clause(b) is independent of clause(c)of Article 63(1) of the RPO. We do not find any substance to interfere with the impugned judgment because the ultimate decision of the High Court Division is correct. Accordingly the appeal is dismissed without any order as to costs. Abul Kashem(Md.) VS Mahmudul Hasan, [4 LM (AD) 15]
Article, 63, 64, 65, 66
When there is equality of votes between two or more contesting candidates and that the addition of one vote for one such candidate would entitle him to be elected, the High Court Division shall so inform the Commission in such a case and then the Election Commission shall after expiry of the period specified for filing appeal before this Division di- rect a fresh poll in respect of the said candidates. Md. Abul Kashem vs. Mah- mudul Hasan (Syed Mahmud Hossain J) (Civil) 10 ADC 519
