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Writ Petition No. 79 of 1966, decided on 23rd February 1967.

Election Tribunal-- Appointment must be made by notification in official Gazette --Appointment effective not from date of notification but from date of publication in official Gazette‑Notification dated 9‑7‑65 but published on 26‑3‑66‑Trial and disposal of election case by Tribunal so appointed prior to 26‑3‑66‑Without jurisdiction.

A. M. Chowdhury and M. A. Rub for Petitioner.

Mokhtar Hossain for Respondent No. 3.

Date of hearing: 22nd February 1967.

.‑In this case the petitioner has challenged the legality of an order passed by the Election Tribunal constituted under the Electoral College Act, 1964, setting aside the election on the petitioner as member of the Electoral College of Unit No. I of Gazipura Union Council, Police Station Bhola, District Bakarganj.

It appears that there were two candidates for the office of the elector from the said Unit, namely, the petitioner and respondent No. 3. The petitioner, however, was declared elected and respondent No. 3, having , been aggrieved by this election, filed an Election Petition before the Election Tribunal. The case was first taken up for hearing by Mr. T. Hossain, Additional Deputy Commissioner (Revenue), Bakarganj and some evidence was recorded by him on the 24th of July 1965. Thereafter, somehow the case came to be heard by Mr. M. Ahmed, Additional Deputy Commissioner (General), Bakarganj, who heard and disposed of the case on the 15th of January 1966 setting aside the election of the petitioner.

Mr. Abdul Muntaquim Choudhury, learned Advocate appearing on behalf of the petitioner, has challenged the jurisdiction of Mr. M. Ahmed, Additional Deputy Commissioner (General), Bakarganj to hear and dispose of the Election Case on the ground that the Additional Deputy Commissioner (General), Bakarganj was never constituted an Election Tribunal under section 59 of the Electoral College Act, 1964 on the date when he heard and disposed of the case. In support of this contention, Mr. Choudhury has drawn our attention to Notification No. PEA/3A‑1/65/5327 dated the 9th July 1965 which was published in the Dacca Gazette, Extraordinary, on the 26th of March 1966. Section 59 (1) of the Electoral College Act provides:

" . . the Commissioner hall, by notification in the official Gazette, appoint an officer to be an Election Tribunal for such area as may be specified in the notification."

It is, therefore, obvious that the appointment of an Election Tribunal must be made by notification in the official Gazette and in no other manner. In the present case, the aforesaid notification dated the 9th of July 1965 appointing Additional Deputy Commissioner (General), Bakarganj to be an Election Tribunal, although dated the 9th of July 1965, was published in the official Gazette for the first time on the 26th of March 1966, i.e., long after Mr. M. Ahmed, Additional Deputy Commissioner (General), Bakarganj had heard and disposed of the Electron case. In view of the said notification, Mr. M. Ahmed, Additional Deputy Commissioner (General), Bakarganj was constituted an Election Tribunal only on the 26th of March 1966 and not earlier and therefore he had no jurisdiction to try the Election Case on the 15th of January 1966.

It appears that the Rule has not been opposed before us by respondents Nos. 1 and 2 and it has been opposed only by respondent No. 3 at whose instance the election of the petitioner has been set aside.

Mr. Mokhtar Hossain, learned Advocate appearing on behalf of respondent No. 3, has contended that the aforesaid notification dated the 9th of July took effect from the date of the notification. We are unable to accept this contention having regard to the clear provisions of section 59 of the Electoral College Act. We may add that, if this contention is accepted, then Mr. T. Hossain, Additional Deputy Commissioner (Revenue), Bakarganj who heard the Election Case and recorded evidence therein on the 24th of July 1965, had no jurisdiction to hear the case and consequently the evidence recorded by him could not be taken into consideration for the purpose of disposal of the case by Mr. M. Ahmed, Additional Deputy Commissioner (General), Bakarganj.

For the reasons stated above, we hold that Mr. M. Ahmed, Additional‑Commissioner (General), Bakarganj had no juris diction to try and dispose of the Election Case against the petitioner on the 15th of January 1966.

We accordingly make the rule absolute with costs which we assess at two Gold Mohurs and declare that the impugned order dated the 15th of January 1966, passed in Election Petition No. 2‑B/65 by Mr. M. Ahmed, Additional Deputy Commissioner (General), Bakarganj, has been passed without lawful authority and is of no legal effect.

We direct that the Election Case filed against the petitioner be now disposed of, by a properly constituted Election Tribunal, in accordance with law, expeditiously.

.‑I agree.

K. B. A.

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