A.F.M. Shah Alam (Appellant)
Mujibul Huq & Others (Respondents)
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
February 19, 1989
The Local Government (Union Parishads) Ordinance, 1983 (LI of 1983), sections 24 and 29
The Union Parishads (Elections) Rules, 1983, Rule 70
(i) In a dispute the issue is to be raised and evidence adduced for adjudication by a competent Tribunal. This function has been given to the Election Tribunal and to nowhere else. The Election Commission has been given power to decide certain matters but such enquiry will not come within the purview of judicial enquiry because the power to decide judicially is different from deciding administratively. By taking resort to extraordinary jurisdiction for a writ the High Court Division will be asked to enter into a territory which is beset with the disputed facts and certainly by wellsettled principles it is clear a writ court will not enter into such controversy.
(ii) Under rule 70 read with Section 24 of the Ordinance the Election Commission has been vested with plenary, supervisory and discretionary jurisdiction to oversee that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules.
(iii) In so doing it may pass any order, unless specifically barred, including an order for re-poll, acceptance/consolidation of result, review etc. on the basis of materials before it. The observance of the rule of audi alteram partem though desirable in some circumstances is not an invariable pre-condition for the validity of such order.
(iv) The jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked except on the very limited ground of total absence of jurisdiction (coram non-judice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70…………………..(48 & 49)
Cases Referred to:
AIR 1952 (SC) 64; 15 DLR (SC) 283; 19 DLR (SC) 316; 1986 BLD (AD) 267; 19 DLR (SC) 516; AIR 1978 (SC) 851; 18 DLR (SC) 426.
Ponnuswami Vs. Returning Officer A.I.R. 1952(SC) 64, Imtiaz Ahmed vs. Ghulam AH 15 D.L.R. (SC) 283 Mohinder Singh Gill and another Vs. The Chief Election Commissioner A.I.R. 1978 (SC) 851, Akbar Ali vs. Raziur Rahman Khawaja and others 18 D.L.R. (SC) 426.
Dr. Kamal Hossain, Senior Advocate, instructed by Kazi Shahabuddin Ahmed, Advocate-on- Record—For the appellant (In C. A. No. 40 of 1988).
M. Golam Rabbani, Senior Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record—For the Respondent No. 1 (In C. A. No. 40 of 1988).
Not represented— Respondent Nos. 2 & 38 (In C. A. No. 40 of 1988).
Syed Ishtiaq Ahmed, Senior Advocate (A. K. M. Nazrul Islam, Advocate with him) instructed by Md. Sajjadul Huq, Advocate-on-Record— For the appellant (In C. A. No. 38 of 1988).
Sharifuddin Chaklader, Advocate-on-Record— For the respondent No. 2 (In C. A. No. 38 of 1988).
Not represented — Respondent Nos. 1 and 3-7(In C. A. No. 38 of 1988).
Mahfuzur Rahman, Advocate instructed by A. Baset Majumder Advocate-on-Record — For the appellant (In C. A. No. 29 of 1988).
Rafiqul Islam, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record— For the respondent No. 1 (In C. A. No. 29 of 1988).
Ex Parte — Respondent Nos. 2-5 (In C. A. No 29/88).
S.R. Pal, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record — For the appellant (In C. A. No. 2 of 1989).
Khandker Mahbubuddin Ahmed, Senior Advocate instructed by Md. Aftab Hossain. Advocate-on-Record—For the respondent No. 1 (In C. A. No. 2 of 1989).
T. H. Khan with S. S. Haider, Senior Advocates, instructed by Ranesh Chandra Maitra, Advocate-on-Record—For the Respondent No. 2 (In C.A. No. 2 of 1989).
Not represented — Respondent Nos. 3-11 (In C. A. No. 2 of 1989).
Khondaker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record— For the petitioner (In C.P. No. 23 of 1989).
S. R. Pal, Senior Advocate instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Respondent No. 8 (In C.P. No. 23 of 1989).
S.S. Haider, Senior Advocate instructed by Ranesh Chandra Maitra, Advocate-on-Record. — For the Respondent Nos. 9(In C. P. 33 of 1989).
Md. Wahidullah, Advocate-on-Record—For the Respondent Nos. 10 and 11 (In C.P. No. 23 of 1989).
Not represented— For Respondent Nos. 1-7(In C.P. No. 23 of 1989).
Jamiruddin Sircar, Advocate instructed by Sk. Chaklader, Advocate-on-Record—For the Appellant (In C.A. No.3 of 1989).
Khondker Mahbubuddin Ahmed, Senior Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record —For the Respondent No. 4 (In CA No.3 of 1989).
Not represented—Respondent Nos. 1 -3 (In C. A. No. 3 of 1989).
Moinul Huq, Advocate instructed by Abul Quasem, Advocate-on-Record — For the Appellant in C.A. No. 4 of 1989.
Mrs. Rabeya Bhuiyan, Advocate instructed by Md. Ataul Hoque, Advocate-on-Record— For the respondent No. 1 (In C. A. No. 4 of 1989).
Not represented – Respondent Nos. 2-9 In C.A. No.4 of 1989.
Md. Fazlul Karim, Senior Advocate, instructed by S.U. Chaklader, Advocate-on-Record— For the Appellant (In CA no. 5 of 1989).
Dr. Rafiqur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record— For the Respondent No. 1 (In C.A. No. 5 of 1989).
S.R. Pal, Senior Advocate, under Order XXI, Rule-1.
Not represented —Respondent Nos. 2-10 (In C.A. No. 5 of 1989).
Syed Ishtiaq Ahmed, Senior Advocate, (Jamiruddin Sircar, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record, For the Appellant (In C.A. No. 8 of 1989).
Amirul Islam, Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on-Record—For the Respondent No. 5 (In C.A. No. 8 of 1989).
Not represented, Respondent Nos. 1- 4 (In C.A. No. 8 of 1989).
T. H. Khan, Senior Advocate (Abu Taker Chowdhury, Advocate With him) instructed by Md. Aftab Hossain, Advocate-on-Record — For the appellant (In C.A. No. 17 of 1989).
Mainul Hosein, Senior Advocate (Md. Joynal Abedin, Advocate with him) instructed by Sharifuddin Chakladar, Advocate-on-Record.—For the Respondent No. 1 (In C.A. No. 17 of 1989).
Not Represented — Respondent Nos. 2-3 (In C.A. No. 17 of 1989).
Civil Appeal No. 40 of 1988.
Civil Appeal No. 38 of 1988.
Civil Appeal No. 29 of 1988.
Civil Appeal No. 2 of 1989 with Civil Petition for Special Leave to Appeal No. 23 of 1989.
Civil Appeal No. 3 of 1989.
Civil Appeal No. 4 of 1989.
Civil Appeal No. 5 of 1989.
Civil Appeal No. 8 of 1989.
Civil Appeal No. 17 of 1989.
Badrul Haider Chowdhury J. — These appeals were heard analogously in a bunch since a common question of law of public importance has been raised as to the interpretation of Rule 70 of the Union Parishad (Election) Rules, 1983.
2. A brief survey of the Local Government (Union Parishads) Ordinance, 1983 and aforesaid Rules will be convenient for considering the nature of the question that has been raised for interpretation. The Ordinance was promulgated in 1983 to provide for constitution of the Union Parishads for the Unions in Rural Areas.
3. There are over 4000 (four thousand) Unions in Bangladesh. On 10.2.1988 elections to these Union Parishads were held and thereafter numerous petitions were filed raising the question of the power of Election Commission under Rule 70. The Ordinance says:
4. A Union Parishad shall consist of a Chairman, 9 elected members and 3 women members (Section 5). Term of the Union Parishad shall be for a period of three years commencing on the day of its first meeting after its constitution. The delimitation of wards is to be done by Officers appointed by the Sub-Divisional Officer or the Upazila Nirbahi Officer (Section 19). The wards shall be delimited having regard to the territorial unity and, so far as practicable, to distribution of population and administrative convenience. Then after hearing objection the delimitation Officer shall publish the final list of wards which will be published in the Official Gazette by the Sub-Divisional Officer or Upazila Nirbahi Officer (section 20). Electoral roll for each ward will be prepared by the Election Commission (section 21). The three elected members from each ward and a Chairman of the Union Parishad to be elected by direct election (section 23). Section 24 provides all elections of Chairman and elected members of the Union Parishad shall be organised, held and conducted by the Election Commission in accordance with the rules, and such rules may provide for all or any of the following matters :—
(a) the appointment of Returning Officers, Assistant Returning Officers, Presiding Officers -and Polling Officers for the conduct of election, and powers and duties of such officers;
(b) the nomination of candidates, objections to nominations and scrutiny of nominations;
(c) the deposits to be made by candidates and the circumstances under which such deposits may be refunded to candidates or forfeited to the Union Parishad;
(d) the withdrawal of candidature;
(e) the appointment of agents of candidates;
(g) the date, time and place for poll and other matters relating to the conduct of elections;
(h) the manner in which votes are to be given;
(i) the scrutiny and counting of votes, the declaration of the result and the procedure to be followed in case of equality of votes;
(j) the custody and disposal of ballot papers and other papers relating to elections;
(k) the circumstances under which polls may be suspended and fresh polls may be held;
(l) the election expenses;
(m) the corrupt or illegal practices and other election offences and penalties thereof; and
(n) any other matter connected with or incidental to elections.
5. Immediately after election the names of all persons elected as Chairman and elected members of the Union Parishad shall be published in the Official Gazette by the Election Commission (section 25). Section 26 provides that no election under the Ordinance shall be called in question except by an election petition. The Election Commission shall by notification in the Official Gazette, appoint a judicial officer to be an Election Tribunal for specified areas (section 27). The Election Commission may transfer the election petition from one Election Tribunal to another Election Tribunal either of its own motion or on an application made in this behalf by any of the parties (section 28). Section 29 provides the procedure for trial of election petition and the decision of the Election Tribunal on an election petition shall be final. An Appeal has been provided to the District Judge and the decision of the District Judge on such appeal shall be final. Section 33 provides for Rule making power of the Government which is to be published in the Official Gazette.
6. This is the Law that has been provided for conducting all elections of the Union Parishad.
7. Now the Rules may be considered. Rule 4 provides the District Election Officer will arrange tested elections; the electoral roll and separate electoral roll for each ward and for that purpose the District Election Officer may appoint such Officer or Officers as he may consider necessary. Then the Returning Officers are appointed by the District Election Officers (Rule 5). The Returning Officer shall provide polling station for each ward subject to any direction of the Election Commission at least 1.5 days before the polling day. Such list of polling station shall not be changed without approval of the Election Commission (Rule 6(1). Then Rule 7 provides the Returning Officer shall appoint Presiding Officer, Assistant Presiding Officers and Polling Officers to assist the Presiding Officer. The Presiding Officer shall conduct the poll and shall maintain order at the polling station. He will report to the Returning Officer any fact or incident which may affect the fairness of the poll (Rule 7(2)). Returning Officer may at any time during the poll suspend any Presiding Officer, Assistant Presiding Officer or Polling Officer (Rule 7(5). Rule 9 provides that the District Election Officer shall notify the days of different stages of the election subject to direction of the Election Commission.
8. Now the arrangement for holding election is set. The Returning Officer shall give a public notice in respect of each ward inviting nomination (Rule 10). Rule 11 provides that any voter of a ward may, for the purpose of election of a member for that ward, propose or second the name of any person who is duly qualified to be elected as member. In the case of Chairman election any voter of any ward may propose the name. Rules 12, 13 and 14 provide for deposit and return of deposit and symbols. Rule 14(5) provides that if in any election the number of candidates is more than the number of symbols giving the schedule the Election Commission may add the required number of new symbols. Then comes Rule 15 which deals with scrutiny of nomination papers and provides for guide-line for the Returning Officer especially when a nomination paper is to be rejected. Rule 16 provides for an appeal against rejection of nomination paper to the Nirbahi Officer or to the Deputy Commissioner and the decision in such appeal is final. Rules 17 to 20 provide for withdrawal and uncontested election. Rule 26 says that the Returning Officer shall fix the place and hours of the poll. If at any time a poll is interrupted or obstructed for reasons beyond the control of the Presiding Office/, he shall stop the poll and inform the Returning Officer that he has done so. The Returning Officer shall immediately report the circumstances to the Election Commission and he will appoint a day for a fresh poll with the approval of the Election Commission (Rule 29(2) (b). Rules 30 to 37 deal with the intermediate stages for poll. Then comes Rule 38 providing for counting of vote by the Presiding Officer and sub-rule 4 provides he may recount the vote either of his own motion or upon the request of a contesting candidate.
9. Now the declaration of result. The Presiding Officer shall count the votes in the presence of contesting candidates or their election agents and prepare a statement in Form “J” but if there are more polling stations he docs not declare the result but send to the Returning Officer for consolidation, otherwise he may declare the name of the elected member in favour of whom the highest number of votes have been cast. In the case of Chairman Election the Presiding Officer shall prepare the statement in Form “K” and send it to the Returning Officer. The Returning Officer shall consolidate in Form “L” in the presence of the contesting candidates and shall declare the name of the elected candidate (Rule 39(5). The Returning Officer shall supply duly attested copy in Form “L” showing the consolidated result of the count to such contesting candidates as may desire to have such statement. Rule 41 provides that the result of election shall be forwarded to the Election Commission “who shall cause it to be published in the Official Gazette.”
10. Part-III deals with Election disputes. Rules 43 and 44 provide as to who shall be parties to an election petition and the manner of filing it and the relief that can be asked for is given in Rule 45. Rule 47 deals with the procedure before the Tribunal and says such petition shall be tried “as nearly as may be, in accordance with the procedure for the trial of suits under the Code of Civil Procedure”. It will have all the power of Civil Courts and shall be deemed to be a Civil Court within the meaning of Sections 480 and 482 of the Code of Criminal Procedure. Rule 49 deals with trial of the election petition and provides that the Tribunal shall not declare the election of any returned candidate or election as a whole void unless it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, these rules.
11. Part IV deals with Offences, Penalties and Procedure.
12. Part V deals with Miscellaneous provisions. Rule 68 deals with Destruction of papers, ballot papers etc. with the approval of the Election Commission. Then comes Rule 70 by an amendment of 1987 dated 24.11.88 and reads as under:—
“70. Powers of Election Commission to issue orders. — Save as otherwise provided, the Election Commission may issue such instructions and exercise such powers, including the power to review an order passed by any officer under these rules and make such consequential orders as may, in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and these rules.”
13. We are asked to interpret the prevision of this rule in the context of the entire law namely the Ordinance and the rules as surveyed above.
14. Analysis of the Ordinance reveals the function and duties of the Election Commission which has been mentioned in Sections 21, 25, 27, 28 and the Rules 6(1)(A), 6(1)(B), 9,26,29(2)(a) and 29(2) (b).
15. Functions and duties of the Returning Officer can be found in Rule 5(3), Rule 6, Rule 7(1), Rule 7(5), Rule 8, Rule 9(2), Rule 10, Rule 12, Rule 14, Rule 15, Rule 15, Rule, 17, Rule 18, Rule 20(3), Rule 21, Rule 26, Rule 27, Rule 29, Rule 30/5, Rule 41 and Rule 42.
16. Functions and duties 6f the Presiding Officers can be found in Rule 6(3), Rule 7(2), Rule 24 (1), Rule 27, Rule 29(1), Rule 30, Rule 30(3), Rule 31, Rule 34, Rule 35, Rule 38, Rule 38(4), Rule 39 and Rule 40.
17. Functions and duties of the District Election Officers can be found in Rule 4, Rule 5 and Rule 9. Lastly the functions and duties of the U.N.O. and D.C. can be found in Rule 20 and Rule 60.
18. Thus four categories of Officers namely, Returning Officer, Presiding Officer, District Election Officer and the U.N.O. or D.C. are involved in the matter of electoral process under the law.
19. Sections 2 and sub-section (7) defines “Election Commission” which means the Election Commission for Bangladesh. The Election Commission of Bangladesh is constituted under Article 118 of the Constitution. Article 119(2) says that the Election Commission shall perform such functions in addition to those specified in clause (1) as may be prescribed by the Constitution or by any other law. Rule 3 of the Union Parishad Election Rules is in the following terms:—
“3. Election Commission.— (1) For the purpose of conducting all elections to Union Parishads, the Election Commission shall, subject to the Ordinance, follow the procedures laid down in these rules.
(2) The Election Commission may require; any person or authority to perform such function or render such assistance as it may direct.
(3) All executive authorities of the government shall assist the Election Commission in the performance of its functions and, for this purpose, the Election Commission may issue such directions as it may consider necessary.”
20. As has been noticed, after the election on 10th February, 1988 many questions cropped up ending in the litigations mainly concerning the power of the Election Commission to issue order for fresh poll or for consolidation of result or for any other step in the process of election in some of these Union Parishads Elections. All the appeals under consideration are merely concerned with this point.
21. We have heard some able arguments of the learned Counsel appearing in these appeals for the appellants and the respondents.
22. Mr. S.R. Pal, the learned counsel appearing for the appellant in one of the appeals, contended that the Election being a sine qua non for democracy necessitates the election of the representatives of the people for sustaining democratic structures of the State. Mr. Pal contended that “election” in popular parlance means the date of poll, but in reality electoral process contemplates the entire period from the notification inviting nominations by the District Election Officer to the declaration of result by the Returning Officer. When the notification under Rule, 9 is made by the District Election Officer “subject to such directions as the Election Commission” as may be given in this behalf, the election process starts and it includes various acts such as scrutiny and withdrawal of nomination papers and the actual polling of ballots on the date as fixed.
23. Returning Officer, shall, subject to any direction of the Election Commission provide for the polling station at least before 15 days of the poll and the list of such polling station shall not be changed “without the approval of the Election Commission”(Rule 6(1 and D.C. can be found in Rule 20 and Rule 60.A) and 6(B). In the matters of symbols if it falls short than the number of candidates the Election Commission may add the required number of new symbols to the list”. Thereafter scrutiny takes place and for rejection of the nomination papers by the Returning Officer. An appeal has been provided for to the U.N.O. or Deputy Commissioner then after the list of validly nominated candidates and withdrawal of candidates the contested election is set and the Returning Officer shall fix the place at which the poll will be taken and its time “subject to any direction of the Election Commission”. If on the date of poll for any reason poll is interrupted or obstructed beyond the control of the Presiding Officer, he shall stop the poll and inform the Returning Officer who shall “immediately report the circumstances to the Election Commission and appoint as soon as may be with the approval of the Election Commission a day for fresh poll.” After the poll the counting is done by Presiding Officer and he will declare the member as elected who has secured highest votes but in case of Chairman Election he shall forward the statement in Form “K” to the Returning Officer who will there upon consolidate the result and shall “declare to be elected the contesting candidates in favour of whom the highest number of votes have been cast”. Thereafter the Returning Officer shall prepare a list in Form “L” showing the name of the contesting candidate declared elected and forward the list to the Election Commission who shall cause it to be published in the Official Gazette. After the Election is over and after the disposal of the Election Petition the ballot papers and sealed covers containing the books of unused ballot papers and the books of counterfoils shall be destroyed by the U.N.O. or by the Deputy Commissioner “with the approval of the Election Commission.” .
24. Thus the Election Commission has not only supervisory jurisdiction in the entire matter to oversee that the election is conducted honestly, justly and fairly, but it can exercise such power including the power “to review an order passed by any officer under these rules and make such consequential order as may be” for ensuring a fair election.
25. Mr. S.R. Pal contended that Rule 70 opens up saying “save otherwise provided” this is in addition to the powers already preserved in the Ordinance and the Rules and it is comparable to section 151 C.P.C. or 561A Cr. P. C. In other words, it is legislative recognition of the inherent plenary power of the Election Commission. Mr. S.R. Pal submitted that roles which have been assigned to the respective functionaries namely, Returning Officer, Presiding Officer and the District Election Officer and the Local authorities are all conferred for the purpose of holding the election which reflects the opinion of the nation because democracy pre-supposes periodic election. It must be held expeditiously and without let or hindrance because the term of the Union Parishad is limited by law (See Section 6). Hence if the elections are not held due to the litigation etc. and are interrupted at the intermediate stages by litigation then the net result will mean that the people will be deprived of having their representatives. The old members will be given a premium to continue for indefinite term. Such attempts will frustrate the very purpose of election. If any controversy arises on regularities or irregularities etc. that can be thrashed out before the Tribunal which has been empowered to take evidence and shall have the power of Civil Court trying a suit under the Code of Civil Procedure and the relief can be claimed that the election of the returned candidate is void and the petitioner or some other person has been duly elected or the election as a whole is void (Rule 45). Mr. Pal submitted that it is no argument to say that there will be delay in completion of the procedure in the Tribunal. Hence the jurisdiction of the High Court Division should not be available under Article 102 for seeking relief at the intermediate stage of the Election.
26. Mr. Pal referred to the decision of Indian Supreme Court in the Case of Ponnuswami Vs. Returning Officer A.I.R. 1952(SC) 64. In that case it was held that the election embraced the whole procedure which consisted of several stages. That the law does not contemplate that there should be two attacks on matters connected with election proceeding, one While the election process is going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Indian Constitution, and another, after they have been completed by means of election-petition. The Court took the view that the intermediate stages may not be challenged before any court until the conclusion of the election itself. It was said that the election should be concluded as early as possible according to time schedule “all controversial matters and all disputes arising out of an election should postpone till after the elections are over, so that the election proceedings may not be unduly retarded or protracted”. It was pointed out that there are certain intermediate stages where certain proceeding may be taken such as scrutiny of nomination papers. It is one of the essential duties to be performed before the election can be completed and anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. Mr. Pal submitted that in our law the only intermediate stage when a proceeding can be taken is given in Rules 16 which provides for appeal against rejection of nomination by the Returning Officer and order of the appellate authority has been made “final”. Apart from this, a bare reading of the Ordinance and Rules will show that at no intermediate stage the legislature contemplated any proceeding which will unduly retard or obstruct the process of election.
27. Mr. Pal submitted therefore that since the Election Commission had been empowered with such plenary power for organizing/holding and conducting the elections of the Union Parishad no court should entertain any proceeding to thwart such power. Unfortunately it is submitted, that the High Court Division has been overburdened with about 2000 (two thousand) writ petitions challenging the authority of the concerned officer at the intermediate stages which has not been contemplated under law itself. Mr. Pal submitted that the jurisdiction of the High Court under Article 102 in election matters is unwarranted and pointed out that Article 102 is hedged by sub-article 2 mainly “if the High Court Division is satisfied no other equally efficacious remedy is provided by law” then only this jurisdiction will be exercised. But when a jurisdiction has been conferred by the creation of a Tribunal such matter may only be litigated by way of election petition under Section 26. Mr. Pal pointed out that the section opens by saying “no election under this Ordinance shall be called in question except by way of election petition” is drafted in a familiar language which could be found in the earlier enactments of the subcontinent. It is in the negative form and it would be found as far back as in 1919 Act (Vide Rule 81) and the same pattern has been followed under the Government of India Act, 1935. It has been primarily intended to exclude or oust the jurisdiction of all courts in regard to electoral matters and to lay down only one mode in which an election could be challenged. Mr. Pal submitted that it would be disastrous in treating a single step taken in furtherance of election as equivalent to election. He has relied on the Indian Supreme Court decision to submit that the familiar expression “no election shall be called in question except by an election petition” is a compendium term so that time schedule ,of the election is not upset. In view of this, Mr. Pal submitted that the plenary power of the Election Commission in Rule 70 should be taken as legislative recognition of such high powered constitutional body for maintaining its supervisory jurisdiction for ensuring that an election is conducted honestly, justly and fairly. The expression honestly, fairly and justly could be found in section 109 of the Electoral College Act, 1964 which reads as follows:—
“109. Save as otherwise provided, the Commission may issue such instructions and exercise such powers, including the power to review an order passed by any officer under this Act or the rules, and make such consequential orders, as may, in its opinion, be necessary for ensuring that an election is conducted honestly, justly, and fairly, and in accordance with the provisions of this Act and the rules.”
Section 112 of the Electoral College Act, 1964 reads as follows: —
“No court shall question the legality of any action taken by or under the authority of the Commission or Commissioner, a Returning Officer or Presiding Officer or any decision given by any of them or by any other of authority appointed under this Act or the rules”.
28. Mr. Pal submitted that the pre-existing pattern has been kept in view if the scheme of the Act read with the rules is perused which show that the overall responsibility for holding an election is that of the Election Commission and consequently it must be armed with such powers as has been given in Rule 70. Mr. Pal submitted that in Imtiaz Ahmed vs. Ghulam Ali 15 D.L.R. (SC) 283, the Supreme Court of Pakistan questioned the propriety of writ when the order of the Election Commission was set aside. The Supreme Court took the view that the remedy provided by the statutes must be availed of. The Court observed as follows:—
“Hence ordinarily the Court in exercise of its writ jurisdiction declines to interfere in cases of election because it is desirable that decision on a matter of disputed election should as soon as possible become final and conclusive so that the Constitution of the Council or Legislature may be distinctly and speedily known. There is another reason why the Court declines to enter into these questions because in such cases there are bound to be serious disputes on questions of facts which can not be properly decided in the writ jurisdictions. If it was to do so, it would enter into a field of investigation which is more N appropriate for a Tribunal rather than for a Court exercising the prerogative of issuing writ. The Court has, therefore, avoided interfering with election disputes, although it cannot be said that the writ jurisdiction of the Court cannot at all be attracted in such cases. For instance, where actions are characterised as being done in bad faith, the exercise of public power may thus be called in question.”
29. In “Presiding Officer Vs. Sadaruddin Ansari” 19 D.L.R. (SC) 316 the Supreme Court of Pakistan noticed the expression “the Court is satisfied that no other remedy is provided by law” and concluded that this is not the same thing as saying that the existence of any alternative mode of seeking some other kind of remedy is by itself sufficient. The Court, however, pointed out that in such proceedings the disputed question of fact will not be gone into and it is only where it is shown upon the face of the record itself that the Officer or authority concerned has failed to discharge his duties that direction could be issued under Article 98 of the Constitution. In that case the arbitrary exercise of the power was taken as colourable exercise of power or even an abuse of power. Only in such circumstances the writ will be available.
30. Mr. Khandker Mahbubuddin Ahmed, learned Counsel appearing for the Respondent in Civil Appeal No.3 of 1989, submitted that the power for holding fresh poll can only be found in Rule 29 and in no other provision. He submits that Rule 70 does not say: “notwithstanding” the Rules, but it says “save by otherwise provided”, which according to him, means of, saving the power of, given to the respective functionaries and offices, and in this sphere, the Election Commission has no authority to interfere because it has not been given power to decide judicially. Mr. Ahmed contended that Rule 70 itself is subject to other Rules and illustrated his point by reference to Section 24 read with Rule 3 and according to him since Rule 3 says “Follow the procedure laid down in this Rule” while interpreting Rule 70 this must be kept in view. The learned Counsel submitted whether there will be fresh poll or not that is the essential question for determination by Returning Officer in Rule 29. Mr. Ahmed says Election means the poll and publication of the result and only after the publication of the result an aggrieved person can go before the Tribunal, but at intermediate stages any irregularity and illegality can be canvassed before the writ jurisdiction.
31. Mr. Syed Ishtiaq Ahmed, the learned counsel appearing for the appellant in Civil Appeal No.38 Of 1988 submitted that over 2000 (two thousand) writ petitions have been filed arising out of the elections which were held in February, 1988 in the 4000 (four thousand) Union Parishads of Bangladesh. It is a sad commentary on electoral process of our country. He submitted that the terms of Rules 70 are of widest import. In order to have free and fair election such power to order re-poll is inherent for conducting election honestly, justly and fairly. Mr. Ahmed pointed out that canvassing which is integral part of electoral process is regulated by Rule 34 and a candidate is to submit to the Presiding Officer his, objections to a voter on the ground that he is not enlisted voter of the ward or he already voted or his claim to be a certain voter is false and such objection shall be heard by the Presiding Officer who will “summarily decide the same and his decision shall be final”. Similarly in Section 29 finality has been attached to the decision of the Election Tribunal and the decision of the District Judge on appeal has been made final. It has been held by this court that such decision can only be challenged by way of civil revision, in 1986 BLD (AD) 267. Mr. Ahmed, however, taking clue from the decision in 19 D.L.R. (SC) 516 in exceptional cases writ jurisdiction may be available, where there is a question of proved bad faith or malafide involved. To hold otherwise it is submitted, is to deny the well settled principle that all disputes must wait to be tried by the Tribunal and the elective body should be allowed to function as soon as possible in a democratic polity. Mr. Ahmed canvassed that the principle laid down in A.I.R. 1952 (SC) 64 was also followed A.I.R. 1978 (SC) 851. Mr. Ahmed lastly submitted that the High Court Division erred in taking the view that the Election Commission cannot direct re-poll.
32. Mr. T.H. Khan, the learned Counsel appearing for some of the respondents, submitted that this review power that has been given is essential for having fair election and submitted that the acceptance of a nomination paper can no doubt be agitated before the Tribunal after the conclusion of the election but the Election Commission can also exercise power of review in the matter of acceptance of nomination paper and such procedure will not hamper provided it does not entail calling of evidence which is exclusively within the domain of the Tribunal.
33. Dr. Kamal Hossain has submitted that plenary power under Rule 70 can be taken as a necessary power for holding election but if in the facts and circumstances of the case it is apparent that the power has been exercised arbitrarily then the writ jurisdiction will be available although the High Court Division must keep in view well-settled principles that in such matter when alternative remedy is provided for the court will not go into the matter which would bring disputed question of fact for adjudication.
Mr. Mainul Hossain, the learned Counsel appearing for some of the respondents contended that the law has assigned well demarcated areas of activity for each individual functionary for discharging its duties for holding the election. It will be unfortunate if these functionaries are circumscribed in their activities by the Election Commission by taking resort to its power under Rule 70. Mr. Hossain contended that when the Presiding Officer announces the result of a member or the Returning Officer consolidates the result of the Chairman, then according to him, the Election Commission has no other alternative but to publish such result as contemplated in Rule 41 which says the Election Commission “shall cause it to be published in the Official Gazette.”
34. This contention is advanced on the theory of total individual responsibility without taking into consideration that the “Election” is a process which culminates in the declaration of result, no doubt, but such declaration can achieve sanctity provided the result has not been obtained by dubious or corrupt or questionable means. If it is so, it is eminently within the jurisdiction of the election Commission to order re-poll upon review of the circumstances of the given case.
35. Mr. Amirul Islam, the learned Counsel ‘appearing for some of the Respondents raised some points as to the extent of the power of the Election Commission to declare fresh poll in the case of Union Parishad. The learned Counsel posed the question whether such power can be exercised by Election Commission suo motu or at the instance of any defeated candidate or at the instance of the Returning Officer and or Presiding Officer. He submitted if the power is exercised suo motu then the function of the Returning Officer and Presiding Officer will be thwarted. He drew our attention to some of the Cases where the Presiding Officer filled up “TA” Form declaring the result of the particular Polling Station but subsequently sent the report that there were disturbances and the polling could not be conducted in accordance with Rules or that he wanted to stop the poll under Rule 29(1) but could not do so due to intimidation, coercion and that he was made to sign the TA” Form on gun point etc. In such cases the learned counsel contended what will be the criteria for deciding the question by the Election Commission and in doing so the Election Commission would be usurping the function of the Election Tribunal.
36. This contention overlooks the provision of the power of review given to the Election Commission in Rule 70. Precisely for such contingency, the question of fresh poll is warranted.
37. Mr. Islam then submitted what is the assurance that the Election Commission will not pass any order arbitrarily. The short answer to this contention is that the order of the Election Commission is not immune from challenge before the Tribunal which can grant any relief in terms of Rule 45.
38. Before we deal with the aspect as to the nature and extent of the jurisdiction under Rule 70 we would like to consider some of the decisions of the Supreme Courts of the sub-continent.
39. In Mohinder Singh Gill and another Vs. The Chief Election Commissioner A.I.R. 1978 (SC) 851. ‘The Indian Supreme Court noticed section 58 and section 64A of the Representation of the people Act wherein the Legislature envisaged the necessity for the cancellation of poll and ordering of re-poll in particular polling stations where situation may warrant such a course. It was observed:
“where provision is made in the Act to deal with situations arising in a particular polling station, it cannot be said that if a general situation arises whereby numerous polling stations may witness serious mal-practices affecting the purity of the electoral process, that power can be denied to the Election Commission to take an appropriate decision”.
40. The Court considered that ‘Election’ covers the entire process from the issue of notification under Section 14 of the Representation-of the People Act to the declaration of the result under Section 66 of the Act. When a poll that has already taken place has been cancelled and a fresh poll has been ordered, the order therefore, with the amended date, is passed as an integral part of the electoral process. It is an order during the course of process of election. The court considered the argument of arbitrary exercise of power and concluded:
“If during the process of election, at an intermediate or final stage, the entire poll has been wrongly cancelled and fresh poll has been wrongly ordered that is a matter which may be agitated after declaration of the result on the basis of the fresh poll, by questioning the election in the appropriate forum by means of an election petition in accordance with law. The petitioner, then, will have a remedy to question every step in the electoral process and every order that has been passed in the process of the election including the countermanding of the earlier poll”.
But the court pointed out writ petition challenging the cancellation coupled with re-poll “amounts to calling in question a step in ‘election’ and is therefore barred by Article 329(b)”. P.K. Goswami J. giving his view, observed –
“Election is a long, elaborate and complicated process and, as far as we can see, the rule of audi alteram partem, which is in itself a fluid rule, cannot be placed in a strait-jacket for purposes of the instant case. It has also to be remembered that the impugned order of the Election Commission could not be said to be a final pronouncement on the rights of the parties as it was in the nature of an order covering an unforeseen eventuality which had arisen at one stage of the election. The aggrieved party had all along a statutory right to call the entire election in question, including the Commissioners order, by an election petition under Section 80 of the Act, for the trial of which an elaborate procedure has been laid down in the Act. Then, as has been stated, there is also a right of appeal under Section 116A.”
The learned Judge then made a cautious observation—
“Justice and fair play have often to be harmonised with exigencies of situations in the light of accumulated totality of circumstances in a given case having regard to the question of prejudice not to the mere combatants in an electoral contest but to the real and larger issue of completion of free and fair election with-rigorous promptitude. Not being adequately informed of all the facts and circumstances, this Court will not make the task of the election court difficult and embarrassing by suggesting guidelines in a rather twilight zone.”
41. The Pakistan Supreme Court, however, took the view that writ jurisdiction is not totally barred in election matters in exceptional case it may be available.
In Akbar Ali vs. Raziur Rahman Khawaja and others 18 D.L.R. (SC) 426 when the Presiding Officer had acted wantonly in canceling six ballot papers of the respondent which were free from any defect, the Court observed.
“If an election authority or tribunal acts in this fashion whether under the National and Provincial Assemblies Act or the Electoral College Act the decision in Miah Jamal Shah’s case would not be an authority for the view that their decisions are sacrosanct and may not be called in question in the High Court.”
The Court further observed—
“The decision in Miah Jamal Shah’s case is not to the effect that an untenable interpretation of law by the Commissioner or the Election Tribunal acting under Section 60 of the Electoral College Act which may amount to excess of jurisdiction or failure to exercise jurisdiction is not susceptible to interference by the High Court.”
42. Thus the arguments of the learned Counsels can be summarised by saying that one group of learned Counsels namely, Mr. S. R. Pal, Mr. Syed Ishtiaq Ahmed, Dr. Kamal Hossain and Mr. T.H. Khan have taken the view that the power conferred by Rule 70 is a necessary inherent power for conducting the election while other group of learned counsels namely, Mr. Khandker Mahbubuddin Ahmed, Dr. Rafiqur Rahman, Mr. Mainul Hosein and Mr. Amirul Islam have taken view that the respective functionaries must be allowed to perform their duties without any interference by the Election Commission.
43. Considering the law which we have surveyed in the foregoing paragraphs it has been noticed that the Election Commission has been given the power from start to finish to oversee that the elections are organised, held and conducted in accordance with law. Rule 70 has conferred upon it the power to review any order passed by the designated authority. Rule 29 shows that when the poll is adjourned the Presiding Officer will inform the Returning Officer and the Returning Officer shall- (a) Immediately report the circumstances to the Election Commission; (b) appoint, as soon as may be, with the approval of the Election Commission, a day for a fresh poll; and (c) fix a place or places at which and the hours during which such fresh poll shall be taken.
44. It was argued by the learned Counsel particularly Mr. Amirul Islam that it is the Returning Officer who shall take the decision for fresh poll and fix the date. He will merely inform the Election Commission and the approval of the Election Commission is necessary for fixing a date only and not for the purpose of taking a decision for fresh poll. This decision is to be taken by the Returning Officer himself.
45. A bare reading of the rule does not permit us to construe Rule 29 Sub-Rule 2 in that fashion that has been argued. On the contrary it is the Election Commission which will take the decision whether there are reasons for ordering fresh poll and the Returning Officer shall fix the date when the poll is to be held.
46. Again it has been argued that the declaration of the Presiding Officer as to the person who got highest number of votes is final and the Presiding Officer is only to prepare the statement in Form “J [TA]” and in case of Chairman Election the Presiding Officer sends to the Returning Officer who consolidates the results and upon consolidation by the Returning Officer the Election Commission is obliged to publish the result and it has no other option.
47. This argument cannot be accepted because the overall responsibility for holding the election and to see that it is conducted justly, honestly and fairly is that of the Election Commission itself. To deny such power is to encourage the muscle power that has been demonstrated in the writ petitions when in the morning one declaration was made by the Presiding Officer and in the afternoon he reported that there had been no election at all. Even in some cases it has been fourth that the Presiding Officer and the Returning Officer were forced, coerced or persuaded to declare the result in the “TA” Form and “L” Form whereas information has been lodged with the Election Commission by competent responsible quarters that there had been no election at all. If the argument is allowed it will mean whatever happened it will be sufficient without appealing to the voters if Presiding Officer and Returning Officer are wooed and kept in good humour. That is no election and that is no democracy. Election is needed to sustain democracy and, a perverse election or voterless election destroys democracy. Hence, the power of review given in Rule 70 is of necessity an important one for holding elections honestly, justly and fairly. This power as we have noticed is neither new nor an innovation. We have quoted Section 109 of the Electoral College Act to show that such power was also given in the previous Act. For the prima facie purpose of such re-poll is to restore a detailed poll process and to complete through the “Salvationary effort of a re-poll”. To quote K. Iyer, J: “whether in fact or law, the order is validly made within his powers or violative of natural justice can be examined later by the appointed instrumentality, viz, the Election Tribunal.”
(A.I.R. 1978 SC, 851 at page 867).
48. Reading the entire law and the rules we have come to this conclusion that the real and larger issue is completion of free and fair election with rigorous promptitude. Hence, election being a long, elaborate and complicated process for the purposes of electing public representatives it is not possible to lay down guidelines by any court because all the exigencies cannot be conceived humanly nor the vagaries of people contesting the election can be fathomed. In a dispute the issue is to be raised and evidence adduced for adjudication by a competent Tribunal. This function has been given to the Election Tribunal and to nowhere else. The Election Commission has been given power to decide certain matters but such enquiry will not come within the purview of judicial enquiry because the power to decide judicially is different from deciding administratively. By taking resort to extraordinary jurisdiction for a writ the High Court Division will be asked to enter into a territory which is beset with the disputed facts and certainly by well-settled principles it is clear a writ court will not enter into such controversy.
49. On consideration of all aspects of the matter, our conclusions are as follows:—
(1) Under rule 70 read with Section 24 of the Ordinance the Election Commission has been vested with plenary, supervisory and discretionary jurisdiction to oversee that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules.
(2) In so doing it may pass any order, unless specifically barred, including an order for re-poll, acceptance/consolidation of result, review etc. on the basis of materials before it. The observance of the rule of audi alteram partem though desirable in some circumstances is not an invariable pre-condition for the validity of such order.
(3) The jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked except on the very limited ground of total absence of jurisdiction (coram non-judice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70 because:
(a) the real and larger issue of completion of free and fair election with rigorous promptitude for timely emergence and functioning of elective bodies must take precedence over settlement of private disputes.
(b) all election disputes must wait pending completion of the election and be taken to the special forum created under the Election Law itself for their resolution.
(c) almost invariably there will arise dispute over facts which cannot and should not be decided in an extraordinary and summary jurisdiction of writ.
Civil Appeal No. 40 of 1988.
A.F.M. Shah Alam vs. Mujibul Huq and others.
In this case the Presiding Officer submitted his report on 10.2.88 stating that the poll was peacefully held. He also sent a “TA” Form which shows Mujibul Huq, the petitioner received highest votes. But the Election Commission directed re-poll. This was challenged before the High Court Division. It was pointed out by the Respondent that the Presiding Officer himself by his subsequent report Annexure “M” series stated that the disturbances had taken place in the centre and when the second election took place on 14.4.88 again there was disturbance. The Election Commission’s order for re-poll for the third time which took place on 24.6.88 and this time Respondent No. 3 secured highest votes. The High Court Division took the view that the petitioner had challenged the order of re-poll itself and the fact that the re-poll itself took place subsequently twice, “does not mean that the challenge has been given a go-bye” and then concluded that after submission of the result by the Presiding Officer the Election Commission has got no authority to cancel the result submitted by the Presiding Officer and there is no law authorising the Election Commission to order a re-poll. The High Court was clearly in error in not keeping in view the scheme of enactment and the well-settled principles empowering such high powered body namely, the Election Commission for taking necessary steps for ensuring fresh and fair election. In view of the principle laid down above, the decision of the High Court Division is set aside and the appeal is allowed. Writ is re-called.
Civil Appeal No. 4 of 1989.
Khurshed Alam vs. Humayun Kabir Salim & others.
Leave was given to consider the correctness of the order made in Writ Petition No.329 of 1988 wherein the learned Judges made the Rule absolute after setting aside the Election Commission’s order for re-poll. In view of the principle we have laid down above it is held that the High Court Division was in error in coming to such conclusion. The appeal, is, therefore, allowed and the order of the High Court Division is set aside. Writ is recalled.
Civil Appeal No. 5 of 1989.
Taslimuddin vs. Md. Abdul Quader Sarker & others.
Here the Presiding Officer submitted election results held on 10.2.88 to the Returning Officer who consolidated the result. This result was accepted by the Election Commission by an order dated 31st March, 1988. The High Court Division, however, in Writ Petition No.705 of 1988 made the Rule absolute after setting aside the order of the Election Commission and took the view that the Election Commission’s order directing the Returning officer to accept the result submitted by the parties on obtaining affidavits from them is not a legal order and accordingly the order of the Election Commission was set aside. The learned Judges it seems presumed that the Presiding Officer cancelled the election and as such no result can be published by the Returning Officer. It has been pointed out that in Writ Jurisdiction the High Court Division will not go into the disputed question of fact and since the decision of the High Court Division was based on such disputed question, there is no hesitation in saying that such decision cannot be sustained.
In the result, this appeal is also allowed. Writ is recalled.
53. Civil Appeal No.2 of 1989 with Civil Petition for Special Leave to Appeal No. 23 of 1989.
The election was held on 10.2.88 but the Election Commission directed re-polling in Shahab Ali Academy Centre and for acceptance of the result of Dattar Bazar High School Centre. The High Court Division took the view that the Election Commission cannot invalidate the results when it was declared by the Presiding Officer and accordingly made the Rule absolute in part.
Civil Petition for Special Leave to Appeal No.23 of 1989 arose out of the other part of the case. We have given our anxious consideration and have concluded that both the orders of the Election Commission are free from infirmity for the reasons mentioned in foregoing paragraphs and therefore it is within the jurisdiction of the Election Commission lo pass the aforesaid order.
In the result, the appeal is allowed but the petition is dismissed. The High Court Division’s order in respect of Shahab Ali Academy Centre is set aside and the writ is recalled. No cost.
Civil Appeal No. 3 of 1989.
Abdus Sattar vs. Bangladesh Election Commission & others
The Election Commission directed fresh poll in two centres namely, Shatugaon Primary School Centre and Ghilabdu Mission Primary School Centre because of disturbances in the two polling stations by its order dated 2nd April, 1988 was challenged by filing writ petition No. 528 of 1988 and the High Court Division made the Rule absolute and set aside the Election Commission’s order for re-poll. As we have said that whether there are disturbances or not that is within the jurisdiction of the Election Commission so as to pass order for re-poll. This order could be challenged before an Election Tribunal. But certainly the High Court Division jurisdiction is not attracted under Article 102 of the Constitution.
This appeal is also allowed. The order of the High Court Divis