Abdul Mutalib Vs. Md Mostakim Ali and others

Abdul Mutalib  (Appellant)

Vs.

Md Mostakim Ali and others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present :

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdur Rouf J

Judgment

May 30, 1996.

 

The Local Government (UP) Ordinance, 1983 (LI of 1983), Section 29(4)

The Code of Civil Procedure, 1908 (V of 1908), Section 115(1)

(i) Ordinarily in exercise of revisional authority under section 115 CPC the revisional Court is not empowered to interfere with the finding of fact arrived at by the subordinate Court or Tribunal upon re-appreciation of evidence unless there has been non-consideration or gross misreading of evidence by the Subordinate Courts or Tribunal which has materially affected the merit of the case…….(11)

()ii Before opening the election materials for recounting of ballot papers the Election Tribunal is to satisfy itself positively that those materials had been preserved by the proper authority in accordance with law and the same has also been found intact under proper seal and cover……..(9)

Cases Referred to-

AKM Ruhul Amin‘s case, 38 DLR (AD) 172, NS Venkatagiri Ayyangar and another vs Hindu Religious Endowment Board, Madras, AIR 1949 PC 156, Syed A Jalil Vs. Mahbub Alam and others 46 DLR (AD) 96 and Md Shahjahan Vs. Md Sadek and anr 38 DLR (AD) 276.

Lawyers Involved:

Maksum-ul Hakim, Senior Advocate (Amirul Islam, Senior Advocate, with him) instructed by Md. Aftab Hossain, Advocate-on-Record — For the Appellant.

B K Das, Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Respondent No.1.

Respondent Nos. 2-8 — Not Represented.

Civil Appeal No. 3 of 1996.

(From the judgment and order dated 3-8-95 passed by the High Court Division in Civil Revision No. 2284 of 1995).

Judgment:

     Mohammad Abdur Rouf J.- This appeal, by special leave, has been preferred against the judgment and order dated 3-8-95 passed by a Single Bench of the High Court Division in Civil Revision No. 2284 of 1995 making the Rule absolute and setting aside thereby the concurrent judgment and order of the Election Appellate Tribunal passed in Miscellaneous (Election) Appeal No. 24 of 1995 on 18-6-95 affirming the judgment and order dated 25-4-95 passed by the Senior Assistant Judge and Election Tribunal in Election Petition No. 3 of 1993 declaring the appellant on recounting of votes as the elected chairman of No. 9 Mullapur Union Parishad Under Biani Bazar Police Station, Sylhet in place of respondent No.1 Md Mustakim Ali who was declared elected Chairman by the Returning Officer.

2. The appellant, an unsuccessful candidate, challenged the election of respondent No.1, held on 29-1-1992 by filing the election petition as noted. The Tribunal after re-counting of votes allowed the election petition and set aside the declared result and declared the appellant as the elected Chairman of the said Union Parishad. Upon an appeal, Miscellaneous (election) Appeal No. 24 of 1995, preferred by respondent No.1 the learned Additional District Judge, First Court as Election Appellate Tribunal, dismissed the appeal and affirmed the judgment of the Election Tribunal. Respondent No.1 then moved the High Court Division in revision, Civil Revision No. 2284. of 1995, and a learned Single Judge of the High Court Division by the impugned judgment and order upon making the Rule absolute, set aside the concurrent judgment and order of the Tribunal below and dismissed the election petition.

3. Leave was granted to consider the submissions made on behalf of the appellant in the following terms:

“The exercise made by the learned Judge of the High Court Division in revision was uncalled for because the Tribunals of the facts upon considering all aspects including the rules referred to by the learned Judge, respectively held and upheld the re-counting of votes and the same being a question of fact was not amenable to interference in the revisional jurisdiction and that the principles referred to the decisions noted in the judgment are not applicable to the facts and circumstances of the case.”

4. Mr. Maksum-ul Hakim, learned Counsel appearing for the appellant submits that subsection 4 of section 29 of the Local Government (Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983), hereinafter referred to as the “Ordinance”, the decision of the District Judge as Election appellate Tribunal has been made final. A revision against such order under section 115 of the Code of Civil Procedure in the High Court Division was incompetent.

5. It is well-settled that the District Judge acting as an Election Appellate Tribunal under the Ordinance is a persona designata and that his decision is revisable under section 115 of the Code of Civil Procedure. Reference in this regard may be made to AKM Ruhul Amin‘s case reported in 38 DLR (AD) 172. The first contention of the learned Counsel is not acceptable.

6. The learned Counsel next submits that even under section 115 of the Code of Civil Procedure the scope of the High Court Division to interfere is circumscribed within a narrow compass and it is only to sec whether the Subordinate Court has committed any error of law which has materially affected the ultimate decision. In the exercise of his revisional jurisdiction the learned Judge was not empowered to interfere with the findings of fact arrived at by the Tribunals below. The learned Judge has acted beyond his revisional authority in interfering with the concurrent findings of fact of the Tribunals below which upon re-counting the votes found that the appellant secured 2193 votes and respondent No.1 secured only 1973 votes. The Election Tribunal rightly declared the appellant as the elected Chairman of the said Union Parishad. In support of his contention the learned Counsel has referred to the case of NS Venkatagiri Ayyangar and another vs Hindu Religious Endowment Board, Madras, AIR 1949 PC 156. There cannot be any question of disagreement with the principles of law laid down by their Lordships of the Judicial Committee in the cited decision as to the normal revisional jurisdiction of the Court under section 115 Code of Civil Procedure.

7. In the instant case the learned Judge raised a very important question as to whether the relevant authority produced the election material untampered and intact with all sanctity before the Election Tribunal for recounting of votes.

8. It is now well-settled that in an appropriate case the Election Tribunal in the interest of justice may recount ballot papers for proper resolution of an election dispute. But in order to make out a case for recounting the person who challenges the counting has to prove that at the time of counting of votes by the presiding officer a contesting candidate or his election agent upon raising specific objection specifically requested the presiding officer to recount the ballot papers provided in Rule 38(4)(b) of the Union Parishads (Election) Rules, 1983 briefly “the Rules” and that the same was improperly refused or was not done in accordance with law.

Relevant portion of Rule 38 runs as follows:

38. Counting of Votes etc.

(1)…………………………………………….

(2)……………………………………………….

(a)……………………………………………

(b)…………………………………………..

(3)………………………………………….

(4) The Presiding Officer may recount the votes

(a) on his own motion if he considers it necessary; or

(b) upon the request of a contesting candidate or an election agent present at the count if, in his opinion, the request is not unreasonable.

9. Moreover before opening the election materials for recounting of ballot papers the Election Tribunal is to satisfy itself positively that those materials had been preserved by the proper authority in accordance with law and the same has also been found intact under proper seal and cover so that no reasonable suspicion can be raised by the interested candidate of any post election tampering with ballot papers or other relevant election materials.

10. The Rules have provided for detailed specific provisions for due preservation of the election materials which may be required to be used in future by the Election Tribunal for a proper resolution of any election dispute.

Rule 40 provides as follows:

“40. Papers to be enclosed in packets. – (1) The Presiding Officer shall enclose and seal into separate packets the following papers connected with election of member for general seat, member for reserved seat and chairman-

(a) The valid ballot papers in favour of contesting candidates;

(b) Invalid ballot papers in pursuance of clause (b) of sub rule (3) of rule 38.

(c) Spoilt and cancelled ballot papers.

(d) A statement showing the result of the count.

(e) The unissued ballot papers together with their counterfoils:

(f) The challenged ballot papers together with the challenged voter list;

(g) Marked copies of voters’ list; and

(h) The counterfoils of the issued ballot papers.

(2) The Presiding Officer shall obtain on each packet sealed by him under sub-rule (1) the signature of such of the contesting candidates or their election agents or polling agents as may desire to sign it.

(3) The Presiding Officer shall prepare a ballot paper account separately for member for general seat, member for reserved seat or Chairman in Form, ‘M’.

(4) The presiding Officer shall send the packets and account prepared by him and such other records as may have been received by him to the Returning Officer without delay under proper escort in a packet or more, duly sealed and shall obtain the signatures of the contesting candidates or their election agents or polling agents as may desire to sign the packet or packets”.

11. Ordinarily in exercise of revisional authority under section 115 CPC the revisional Court is not empowered to interfere with the finding of fact arrived at by the subordinate Court or Tribunal upon reapprecation of evidence unless there has been non-consideration or gross misreading of evidence by the Subordinate Courts or Tribunal which has materially affected the merit of the case.

12. The learned Judge upon a judicious consideration of the material facts and the evidence on record has gone into the very root of the problem. He has considered whether there had been any scope of post-election tampering with the ballot papers which were taken into account by the Tribunal while recounting the votes. The Election Tribunal itself found that the gunny bags containing election materials were not sealed and the packets inside the gunny bags containing used and unused ballot papers were found to be open and not sealed and certain statements required by the Rules were also found missing from inside those gunny bags. The learned Judge upon a detailed consideration of the materials on record arrived at a conclusion that there was tampering with the seals of the gunny bags containing ballot papers in packets and therefore the preserved ballot papers lost their sanctity. In arriving at such conclusion the learned. Judge has taken into consideration the following undisputed facts:

(i) Neither the election petitioner nor his election agent ever made any request to the presiding officers for recounting of votes, provided in Rule 38.

(ii) In the election petition the petitioner did not seek for recounting of votes.

(iii) He did not lay any foundation in the evidence for making out case for recounting of ballot papers.

(iv) Only after the close of evidence when the case was set down for argument the election petitioner for the first time on 11-10-92 prayed for recounting of ballot papers.

(v) The Election Tribunal on 1-8-93 passed an order directing the Returning Officer for producing the election materials for recounting of votes on 3-8-93 and the said Returning Officer ultimately on 8-8-93 produced 3(three) un-sealed gunny bags containing election materials.

(vi) In the mean time the present respondent No.1 filed a sworn application before the Election Tribunal making positive allegations of post election tampering of ballot papers and election materials.

(vii) The present respondent No.1 took several attempts to examine the Presiding Officers, Returning Officer and the Treasury Officer as witness to prove post-election tampering of summons against them for appearing as witnesses. On the other hand, the Tribunal took the view that it is itself sufficient to ascertain if the election materials were intact or not.

(viii) Three gunny bags containing election materials produced from the treasury was without proper seal on the tied up end as had been noticed by the Tribunal. The tribunal further found that the two packets containing valid ballot papers of Nidanpur Supatala Government Primary School Polling Station were open and not sealed as required under sub-rule (1) and (4) of Rule 40 and that in violation of rule 42, the election materials had been lying unsecured with the Returning Officer for long.

13. Mr. BK Das learned Advocate appearing for respondent No.1 rightly submits, that in the facts and circumstances of the instant case the learned Judge of the High Court Division upon proper application of the relevant law has rightly passed the impugned judgment which warrants no interference by this Division. The learned Advocate further submits that the concerned authority failed to maintain the sanctity of the election materials which were placed before the Election Tribunal for recounting of ballot papers.

14. In the circumstances noted above the learned Judge of the High Court Division appears to have taken the correct view upon taking into consideration the law laid down in the case of Syed A Jalil versus Mahbub Alam and others 46 DLR (AD) 96 and Md. Shahjahan versus Md. Sadek and anr 38 DLR (AD) 276 in setting aside the decision given by the Election Tribunal and affirmed by the Appellate Tribunal as both those Tribunals surprisingly failed to take into consideration the undisputed facts noted above which amounts to non-consideration of the essence of evidence on record which has occasioned in a total failure of justice.

For the reasons mentioned above, we do not find any illegality in the impugned judgment of the High Court Division and accordingly this appeal is dismissed without any order as to cost.

Ed.

Source: 51 DLR (AD) (1999) 228

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