Abul Kalam (Md.) Vs. Md. Habuluddin and others

Abul Kalam (Md.) (Petitioner)

Vs.

Md. Habuluddin and others (Respondents)

Supreme Court

High Court Division

(Civil Revisional Jurisdiction)

Present:

Md. Abdur Rashid J

Judgment

February 19, 2007.

Cases Referred To-

Afzal Khan vs. Election Tribunal and others, 32 DLR (AD) 186; Md. Shahjahan vs. Md. Sadeq, 38 DLR (AD) 275; Moulana Mokhter Ahmed vs. Mohammadul Mokhter Usmani and others, 40 DLR (AD) 165; Syed A Jalil vs. Mahbub Alam (Babul) and others, 46 DLR (AD) 96; Ansaruddin Ahmed vs. Nasir Mian and others, 46 DLR (AD) 181; Md. Ziauddin Biswas vs. District Judge, Chuadanga and others, 37 DLR 235; Md. A Ghafur Mondal vs. Md. A Samad Talukder and another, 1993 BLD 485.

Lawyers involved:

Idrisur Rahman with Md Shahidullah, Advocates— For the Petitioner.

Not represented- the Opposite Parties.

Civil Revision No. 4329 of 2005.

Judgment

Md. Abdur Rashid J.- Election petitioner obtained the Rule upon making a revision application under sub-section (4) of section 115 of the Code of Civil Procedure against the judgment and order dated 16-10-05 passed by the Additional District Judge at Sherpur in Civil Revision No. 16 of 2005, which reversed the order of the Election Tribunal calling for election materials for recounting of the votes.

2. Short facts for disposal of the Rule are that the election of Nokia Paurashava in the District of Sherpur was held on 10-5-04. In the election for commissioner of Ward No. 4, the election petitioner along with four others contested. He got 452 votes with the symbol of ‘Machh’ while opposite party No. 1 Habuluddin with ‘Morog’ got 475 votes. Then, opposite party No. 1, hereinafter referred to as elected member, was declared elected. Result of the election was published on 15-5-04.

3. Being aggrieved with the result, the election petitioner on 26-5-2004 made an election petition being Election Petition Case No. 1 of 2004 before the Election Tribunal at Sherpur on the allega­tions of various corrupt and/or illegal practices. Elected member opposed the petition by filing a written objection denying all the allegations.

4. The petitioner and the opposite parties both examined three witnesses each in support of their respective cases. After closure of the evidence at the trial of the case, the Election Tribunal fixed 8-5­-2004 for arguments.

5. Then, it appears that on 15-9-2004 the petitioner made an application for calling the election materials for recounting of the ballot papers of Ward No. 4. The Election Tribunal heard the application and allowed on the view that recounting of the ballots would be essential for the ends of justice.

6. Against the said order, the elected member made a revision application before the District Judge at Sherpur. Hearing the revision application, learned Additional District Judge by impugned order allowed revision and set aside the order of the tribunal for recounting of the ballots and directed the tribunal to proceed with the case in the light of observations made.

7. Mr. Idrisur Rahman, learned Advocate for the petitioner, submitted that as the Court of District Judge had no jurisdiction to entertain a revision application against the order of an Election Tribunal, impugned order setting aside the order for recount of the votes therefore, resulted in failure of justice.

8. In support he cited Afzal Khan vs Election Tribunal and others, 32 DLR (AD) 186 and Md. Shahjahan vs. Md Sadeq, 38 DLR (AD) 275.

9. He also submitted that the revision Court also fell in serious error on merit of the case in setting aside the order for recount, which resulted in serious failure of justice. In support he cited Moulana Mokhter Ahmed vs. Mohammadul Mokhter Usmani and others, 40 DLR AD 165; Syed A Jalil vs. Mahbub Alam (Babul) and others, 46 DLR (AD) 96; Ansaruddin Ahmed vs. Nasir Miah and others, 46 DLR (AD) 181; Md. Ziauddin Biswas vs. District Judge, Chuadanga and others, 37 DLR 235 and Md. A Ghafur Mondal vs. Md. A Samad Talukder and another 1993 BLD 485.


10. I have perused the record.

11. It appears from the record that in support of their respective cases both the election petitioner and the elected member examined three witnesses each. After the close of the evidence, the case was fixed for preemptory hearing. On 15-9-2004 the election petitioner made an application for calling of the election materials for recounting of the ballot papers. In the application, it was simply stated that it was essential to call the election materials for resolution of the election dispute.

12. On 24-5-2005 the Election Tribunal heard the application and found the recounting of the votes was necessary for ends of justice and accordingly, directed the returning officer for sending the election materials.

13. The revision Court however, found, on consideration of the facts and circumstances of the case and the materials on record, that the election petitioner never requested the presiding officer for recount of the votes after the final count of the ballots in the election and that the application for recount was unspecific, indefinite and vague with regard to invalid ballots, challenged ballots, etc. It found that the elected member was declared elected by a margin of 23 votes out of 1734 votes cast. Upon such view, the revision Court reversed the order of the Election Tribunal for recount.

14. I have also examined the record. I could not find any mistake in the above findings of the revision Court. The revision Court was however, wrong in finding that the election petitioner became third in the race. Such finding was not material and had not materially affected its ultimate decision on the issue of recount.

15. Sub-rule (4) of rule 37 of the Paurashava (Election) Rules, 1977, in short, the Rules, which was made by the Government empowered by sec­tion 146 of the Paurashava Election Ordinance, 1977 hereinafter referred to as the Ordinance empo­wers the Presiding Officer only to recount the votes (a) on his own motion, if he thinks 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. Exercise of such power is made dependent upon formation of his opinion that the request was reasonable and recount was necessary in the facts and circumstances of the case. Such power therefore, cannot be exercised even by the Presiding Officer as a matter of course.

16. It is also now settled by judicial pronouncements of the apex Courts in the Subcontinent that the Election Tribunal can also exercise such power of the Presiding Officer to recount the votes if it finds that in the facts and circumstances of the case and evidence adduced or materials placed, the election dispute cannot be resolved without recounting of the votes. Ballots as solemn expression of the voters are always taken to be secret and sacred. Unless such a case is made out, the bags of ballots tied, sealed and kept in official custody after the election cannot, as a matter of course, be ordered to be reopened for recount. There must be some evidence or material adduced or placed before the Election Tribunal laying the foundation for reopening the ballots and the Election Tribunal must record its satisfaction on the evidence or materials for the necessity of the recount of votes in the
resolution of the election dispute.

17. In the case at hand, there is no dispute that the election petitioner never made any request to the Presiding Officer for recount of the votes after the election. He even did not contend that in his election petition. Nor did he claim in the election petition that the election dispute could not be resolved without recount of the votes in the facts and circumstances of the case. The evidence adduced also could not be pressed to make out a case for recount. In such circumstances, the view of the Election Tribunal that the recount of votes was essential for the ends of justice has got no basis for the recount of the votes and was rightly reversed by the learned Additional District Judge. None of the decisions cited on the recount of votes does support Mr. Idris rather justifies the order of the revision Court in setting aside that of the Election Tribunal for recount.

18. Secondly, sub-section (3) provides that the decision of the Election Tribunal on an election petition shall be final subject only to sub-section (4) of section 30 of the Ordinance. Sub-section (4) of section 30 of the Ordinance gives a right of appeal to a person who feels aggrieved by a decision of the Election Tribunal within thirty days of pronounce­ment of the decision to the District Judge in whose jurisdiction the election in dispute was held. It should be noted that the District Judge has not been described as an appellate tribunal. District Judge here must be understood as the principal civil Court in the District. And the word ‘decision’ here means only the final order in disposing of the election dispute and does not include an interlocutory order.

19. Old section 115 of the Code of Civil Procedure has been amended by Act XXIX of 2003. Sub-section (2) of section 115 of the Code now empowers the District Judge to call for record of any suit or proceeding, in which order has been passed by a Court of Joint District Judge or Senior Assistant Judge or Assistant Judge from which no appeal lies and if such Court appears to have committed any error of law resulting in an error in such order occasioning failure of justice, and revise such order and make such order as it thinks fit and proper. In the case before me, second Joint District Judge was appointed the Election Tribunal at Sherpur. Its order calling the election materials for recount of the votes is an interlocutory order pending its decision finally disposing of the election petition under sub-section 3 of section 37 of the Ordinance. No appeal is provided against such an interlocutory order. Sub-section 2 of section 115 of the Code of Civil Procedure empowers the District Judge to revise such an interlocutory order of the Joint District Judge acting as an Election Tribunal.

20. In 2/3 cases, this Division took the view that this Division has got no jurisdiction to revise an interlocutory order of an Election Tribunal. In many other cases, I find appropriate order was passed by this Division either in making absolute or discharg­ing the Rule issued upon a revision application made under old section 115 of the Code. The view that no revision was maintainable against an order of an Election Tribunal was mainly based on the erstwhile provision of section 115 of the Code that an Election Tribunal was “not a Court subordinate to the High Court Division”. That principle could no more be now pressed into application in the exercise of revision jurisdiction by the District Judge. Newer provisions of sub-section 2 of section 115 of the Code do not leave any scope for any controversy after clearly naming the subordinate Courts from whose orders a revision would lie before the District Judge.

21. For the reasons aforesaid, I find no substance in the submissions of Mr. Idris, I also find the first revision Court did not commit any error, which resulted in an important question of law occasioning failure of justice.

22. In the result, the Rule is discharged with cost. Cost is assessed at taka two thousand. Order of stay granted at the time of issue of the Rule is hereby recalled and vacated.

Send down the record at once.

Ed.

Source: 59 DLR (2007) 137

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