Khandakar (Md.) Shahjahan (Petitioner)
Vs.
Md. Atiar Rahman Monshi & others (Respondent)
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
Present:
AK Badrul Huq J
Judgment
October 22, 2000.
Cases Referred To-
Muhammad Zulfikar Vs. Abul Kalam Chowdhury and others, 42 DLR 21; 1990 BLD (AD) 58, 42 DLR (AD) 83.
Lawyers Involved:
Md. Idrisur Rahman with Md. Sultan Uddin, Md. Ekramul Islam and Md. Shahidullah, Advocates — For the Petitioner.
Mahbubey Alam, with SM Abul Hossain, Mozammel Hossain, Md. Harun-ur Rashid and Mahfuza Begum, Advocates—For the Opposite Party No.1.
Civil Revision No.1562 of 2000.
Judgment
AK Badrul Huq J.- Feeling aggrieved by a Judgment and order recorded by Execution Appellate Judge wherein allowing Election Appeal, Judgment and order passed by Election Tribunal in an Election Petition stood set aside and election of the office of Chairman of No.2 Daidalia Union Parishad in the Union Parishad Election held on 20-12-1997 and published in Official Gazette on 3-3-1998 was declared as a whole void on allowing Election Petition, the successful candidate i.e. Elected Chairman as petitioner invoked this Court’s Civil Revisional Jurisdiction on laying a petition under section 115 of the Code of Civil Procedure whereupon Rule was issued calling upon the opposite party No.1 to show cause as to why judgment and order dated 10-4-2000 passed by learned Subordinate Judge, Second Court, Kurigram and Election Appellate Judge in Miscellaneous Appeal No.36 of 1999 (Election Appeal) allowing the appeal on reversing those of dated 2-8-1999 passed by learned Senior Assistant Judge and Election Tribunal, Ulipur dismissing the Election Petition shall not be set aside.
2. Successful candidate i.e. elected Chairman, Khandaker Md. Shahjahan was respondent in Election Petition as well as in the Election Appeal and he is petitioner in Civil Revision Petition and he will be referred to hereinafter as petitioner.
3. Unsuccessful candidate Md. Atiar Rahman Munshi who secured the next highest votes was petitioner in Election Petition and appellant in Election Appeal and he is the first opposite party in Civil Revision Petition and he will be described hereinafter as opposite party.
4. Contentions pressed into service on behalf of petitioner are catalogued hereunder.
(i) Learned District Judge cannot transfer Election Appeal to learned Subordinate Judge and learned Subordinate Judge is not contemplated in the Local Government (Union Parishad) Ordinance, 1983 and rules framed thereunder as Election Appellate Tribunal and the judgment passed by learned Subordinate Judge as Election Appellate Judge is without jurisdiction. Under the definition of District Judge learned ‘Additional District Judge’ comes and learned ‘Subordinate Judge’ does not fall within the category of District Judge.
(ii) The result of Election had not been materially affected by striking out the names of 555 named persons from Electoral Roll and learned appellate Judge committed grave error in declaring election of the office of Chairman of Union Parishad as a whole void and by this a failure of justice has been occasioned. No authority could be placed from the side of petitioner in support of the contention raised.
5. Contentions pressed into service from the side of petitioner has been repelled for and on behalf of opposite party in bringing his strenuous arguments which are hereunder:
(i) District Judge as the Principal Judge of a District has got authority and jurisdiction to transfer an appeal pending before him to any court subordinate to him except the Court of Assistant Judge.
Section 22 of the Civil Court Act, 1887 and Muhammad Zulfikar Vs. Abul Kalam Chowdhury and others, 42 DLR 21 and 1990 BLD (AD) 58, 42 DLR (AD) 83 have been relied upon in support of the said argument.
(ii) The right of 555 voters have been snatched away by striking out their names from Electoral Rolls and by that the election result has been materially affected.
6. In the face of the contentions advanced from both the sides two fundamental questions survive for determination in this Civil Revision Petition or to put it differently, the fate of Civil Revision Petition hinges on answer to two questions which are:
(i) Whether learned Subordinate Judge as Election Appellate Judge can hear and dispose of Election Appeal which was transferred to him by learned District Judge and whether Judgment and order recorded by learned Subordinate Judge as Election Appellate Judge is without jurisdiction.
(ii) Whether by striking out the names of 555 persons from Electoral Roll and by non participation of 555 persons as voters in election the result of the election can be said to have been materially affected and for that the election result as a whole can be declared void.
7. Facts and circumstances essential and requisite to answer the above two questions may succinctly be stated.
8. Petitioner and opposite party and other five candidates contested the election for offices Chairman No.2 Daldalia Union Parishad held on 20-12-1997. Petitioner secured 3568 votes and opposite party got 3191 votes, petitioner was declared elected as chairman of No.2 Daldalia Union Parishad and election result was published on 3-3-1998. The delay caused in publication of the result in Gazette was due to an order of stay recorded by High Court Division in Writ Petition No.200 of 1998.
9. The validity of the election of the petitioner as returned candidate had been challenged by unsuccessful candidate, opposite party on presentation of an election petition before Election Tribunal impleading returned candidate, petitioner and others as respondents for declaring the election of returned candidate, the petitioner void.
10. Main attack launched or the main case projected before the Election Tribunal by opposite party was that petitioner was shown to have secured 377 votes than opposite party. The other attack directed was that petitioner in collusion with District Election Officer excluded names of voters from ward Nos.1-3 on 9-12-1997 a petitioner, thus, secured his success in election.
11. Petitioner resisted Election petition on presentation of written objection with contention that he is the inhabitant of old Ward No.1 after re-organisation was numbered as new ward Nos. 2 and 3. In the year 1997 opposite party was Chairman of Union Parishad and for illegal gain and undue benefits in collusion with Registration Officer managed to include names of some fictitious and false persons as voters in voter list and shown 4400 false voters. Further averment was that opposite party in collusion with Voter Registration Officer arranged to include 681 false and fictitious persons as voters. Final computer printed voter list published on 31-12-1996 remained correct but subsequently in typed voter list 681 false and fictitious persons as voters were shown. The said false inclusion was detected upon inquiry by Deputy Commissioner through Thana Nirbahi Officer and Registration Officer and Election Commission on 24-11-1997 and 28-11-1997 issued direction for cancellation of those voters and authority accordingly, cancelled those false voters from voter list. Further stand taken was that polling of all 10 centers had been held peacefully.
12. Evidence both oral and documentary had been led in support of the respective contentions of the parties. Petitioner examined 15 witnesses in support of his case. Ten witnesses stood in witness box to support the case of opposite party. Documents produced by both parties had been exhibited as exhibits.
13. Election Tribunal by Judgment and order dated 2-8-1999 dismissed Election Petition. In recording dismissal Election Tribunal found that preparation of Electoral Roll and exclusion were matters prior to election and are not election concerned matters. Tribunal found that it was not at all established that the exclusion of 555 voters had been done at the wish and influence of petitioner and found that proper authority concerned excluded 555 voters from voter list and the matter was published in local and national newspapers. Tribunal also took the view that opposite party could not lay any claim that all the 555 voters were his supporters. Tribunal further took the view that no other successful and defeated candidate for other posts of Union Parishad did put forward any allegation in, respect of exclusion of 555 voters. Tribunal held that PW 7 was an elected member from ward No.3 and his election was also held with the exclusion of 555 voters but his election was not challenged by any unsuccessful candidate for the post of member and no female candidate did throw any challenge against the election of an elected female candidate. Election Tribunal also found that no other candidate either for the Office of Chairman or Member did bring any allegation in respect of election and voter-list and election result and voter-list did not cause any influence in election result. Election Tribunal further found that neither other Chairman Candidate nor any member candidate either male or female did challenge voter list. Election Tribunal positively found that there was no basis for allegations of opposite party. Election Tribunal also found that in exclusion process of the names of 555 voter’s petitioner had no hand or any part.
14. Opposite party felt aggrieved of the above adjudication and sought setting aside through a medium of appeal being Election Appeal No. 36 of 1999 before the Court of District Judge, Kurigram, Learned District Judge transferred the appeal to learned Subordinate Judge, Second Court, Kurigram for hearing and disposal, Learned Sub-ordinate Judge, Second Court, Kurigram heard the appeal and by Judgment and order dated 10-4-2000 allowed the appeal, set aside judgment and order recorded by Election Tribunal and declared election result of Chairman of No. 2 Daldalia Union Parishad as a whole void. In allowing the appeal Election Appellate Judge taking into account Exhibit 11 found that after declaration of election schedule without the permission of Election Commission, Electoral Roll or voter list could not be corrected or revised, Election Appellate Judge found that there were no evidence to show that exclusion of 555 voters had been done under the direction of Election Commission. Election Appellate Judge took the view that exclusion or revision of Electoral Roll was without the permission of Election Commission and exclusion of 555 voters was a clear violation of sub-rule (5) of Rule 20 of the Electoral Rolls Rules, 1982 and District Election Officer and District Registration Officer illegally excluded or struck out the names of 555 voters after declaration of election schedule and those voters were deprived of exercising their right of franchise and opposite party (Election Petitioner) was entitled to get a verdict under Rule 45 (b) of Union Parishad Election Rules. In recording that decision appellate Judge took into account some authorities of our jurisdiction.
15. Feeling dissatisfied, petitioner approached this Court in this Civil Revision petition and obtained the present Rule.
16. Mr. Md. Idrisur Rahman, with Mr. Sultan Uddin, Md. Ekramul Islam and Mr. Md. Shahidullah, learned Advocates appeared for petitioner. Opposite party is represented by Mr. Mahbubey Alam, with Mr. SM Abul Hossain, Mr. Mozammel Hossain, Mr. Md. Harun-or Rashid and Ms Mahfuza Begum, learned Advocates.
17. Questions posed now to be answered.
18. First Question
In approaching and answering to the First Question provisions contained in sub-section 4 of section 29 of the Local Government (Union Parishad), Ordinance, 1983, hereinafter referred to as Ordinance of 1983, Section 22 of the Civil Courts Act of 1887 hereinafter described as Act of 1887 and section 24 of the Code of Civil Procedure hereinafter known as the Code may profitably be noticed.
19. Sub-section 4 of section 29 of Ordinance of 1983 enshrines that any person aggrieved by a decision of Election Tribunal may within thirty (30) days of the decision prefer an appeal to the District Judge within whose jurisdiction the election and dispute was held and the decision of the District Judge in such appeal shall be final.
20. Section 22 of the Civil Courts Act, 1887 enjoins that a District Judge may transfer to any Subordinate Judge under his administrative control any appeals pending before him from the decrees or orders of Assistant Judges.
21. Section 24 of the Code of Civil Procedure mandates that on the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard or of its own motion without such notice, the High Court Division or the District Court may at any stage transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it competent to try or dispose of the same.
22. The expression ‘District Judge’ has neither been defined in the Local Government (Union Parishad) Ordinance, 1983 nor in the Code of Civil Procedure. The words ‘District Judge’ has been defined in the General Clauses Act, 1897 which states that District Judge means the Judge of a principal Civil Court of original jurisdiction. District Judge, thus, is the principal Judge of the principal Civil Court of Original Jurisdiction.
23. In sub-section 4 of section 29 of the Ordinance of 1983 provision for preferring appeal had been made to the ‘District Judge’ and not ‘Election Appellate Tribunal’. ‘District Judge being the principal Judge and the Head Judgeship of District, thus under section 24 of the Code may transfer any appeal to any Subordinate Judge pending before him from the decree or orders of Assistant Judge. Under section 27 of the Ordinance of 1983, Government appoints a Judicial officer to be an Election Tribunal and an Assistant Judge is appointed as Election Tribunal.
24. Under section 24 of the Code power of transfer had been conferred upon ‘District Judge and thus, learned ‘District Judge’ got the authority or jurisdiction to transfer an Election appeal to a Subordinate Judge and the power and jurisdiction exercised by learned Subordinate Judge as appellate, Judge is the same power and authority which can be exercised by learned District Judge himself a appellate Judge. Contention advanced from the side of petitioner as to the authority and jurisdiction of learned Subordinate Judge to dispose of E1ection Appeal stands ruled out. The first question, thus, stands answered accordingly.
25. Second Question: For the purpose of answering to the second question provisions contained in proviso to sub-rule (2) of Rule 49 of the Union Parishad (Election) Rules, 1983, and sub-rule (5) of Rule 20 of the Electoral Rolls Rules, 1982 may conveniently be seen and considered.
26. Proviso to sub-rule (2) of rule 49 of the Union Parishad (Election) Rules of 1993 provides that Tribunal shall not declare the election of an 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 any person to comply with, or the contravention of, these rules. The concluding two words ‘those rules’ will be very much material for the purpose ‘The Rules’ means the ‘Rules’ framed under The Union Parishad (Election) Rules, 1983 and definitely not the Electoral Rolls, Rules 1982.
27. Sub-rule 5 of Rule 20 of the Electoral Rolls, Rules, 1982 states that no amendment or correction of Electoral Roll shall be made under this Rule at any time after the notice of election has been issued and before such election has been held.
28. Grievance of opposite party is that the election schedule has been declared on 14-10-1997 and election was held on 20-12-1997 and the amendment or correction of voter list was made on 9-12-1997 and since the correction or exclusion of the voter list occurred after the election schedule had been declared, exclusion of 555 voters, was, absolutely illegal and without jurisdiction and by this result of election has been materially affected. Reliance had been also placed from the side of opposite party No.1 on Exhibit-11, a letter issued by Senior Assistant Secretary, Election 1 dated 24-11-1997 to District Election Officer and Registration Officer wherein it is stated that under the rules after declaration of election schedule and before holding of election no inclusion or correction could be made by District Election Officer and Registration Officer and within this period the sole authority to record any correction absolutely vests with election commission. A decision was also stated that for correction and inclusion of any name in a voter list any person is to contact with District Election Officer and that correction or inclusion would be recommended to Election Commissioner on enquiry in accordance with procedure and Election Commissioner would not accept any application directly. Rule quoted in the letter is possibly sub-rule (5) of Rule 20 of Electoral Rolls Rules, 1982.
29. It is canvassed from the side of petitioner that opposite party during his tenure as Chairman in the year 1996 included 641 voters including 555 votes in voter list illegally and Election authority on proper enquiry on proper collection of materials and information excluded the names of 555 persons from Electoral Roll.
30. Exclusion of 555 voters is admitted by both the parties. Now the fundamental question comes whether by exclusion of 555 voters result of election had been materially affected or not.
31. There is no positive testimony from the side of opposite party that all the 555 voters would have cast their votes in his favour if those persons could exercise their right of voting. PWs 3 and 5 stated that they were voters and their names had been illegally excluded. PW7, successful candidate for the post of membership from ward No.3 gave evidence that his election as a member of the Union Parishad was legal and no prejudice had been caused to any member candidate for exclusion of 555 votes. It appears that none of the unsuccessful candidates for the office of Chairman and Members both male and female from ward Nos.1, 2, 3 (previous ward No.1) did challenge the validity of election on the ground of exclusion of 555 voters from Voter List. Election Tribunal recorded positive decision that for correction or exclusion of 555 voters, the result of election had not been at all affected. Election Tribunal categorically found that petitioner got no hand in the exclusion matter and he could not be posted for the liability of the exclusion of those voters. Learned Appellate Judge declared the election of the Union Parishad as a whole void taking view that sub-rule 5 of Rule 20 of Electoral Rolls, Rules, 1982 had been violated and by that result of election had been materially affected. But violation of any rules contained in Electoral Rolls, Rules 1982 will not be any ground for declaring the election Void and the election can be declared void only in the event of violation of Union Parishad Election Rules, 1982 as mandated in proviso to sub-rule 2 of Rule 49 of the Union Parishad (Election) Rules, 1983.
32. Election is a solemn process and election of a successful candidate cannot be knocked down very lightly specifically on the sweet wishes of an unsuccessful candidate whose whole object is directed to unseat a successful candidate. Keeping in view that Legislature had mandated in Rule 49 of the Union Parishad (Election) Rules, 1983 that a 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, rules framed thereunder.
33. From evidences and materials brought on record it does not at all transpire that the result of the election had been materially affected by reason of any failure of any person to comply with or contravention of the Union Parishad (Election) Rules. Election Tribunal appears to have directed his approach correctly and properly. But the Election Appellate Judge appears to have misdirected himself in his total approach of the matter and, thus, committed an error in declaring the election of the petitioner, the returned candidate void.
34. This takes me to the propriety of decision recorded by Election Appellate Judge in declaring the election of the office of Chairman of Union Parishad as a whole void. Validity of election in other centers of six wards was not challenged and allegations had been leveled only with respect to two polling centers of ward Nos.4 and 5 as to alleged commission of illegalities and rigging and also recounting of ballot papers. No case of recounting had been made out by opposite party through legal evidence. Learned Appellate Judge did not touch the election of those two wards. Election Appellate Judge directed his whole energy with respect to the exclusion of 555 persons from voter list. In this event any commission of illegalities or contravention of any rules or laws election of only those centers could be declared void without touching the result of other centers of other wards. Learned Election Appellate Judge was not at all justified in declaring the election result of all other centers void. From this score also the decision recorded by Election Appellate Judge suffers from patent illegality, legal infirmity, perversity and flagrant error of law.
35. On conspectus I am of this considered view that the election of the petitioner, the returned candidate was not to be nullified at the sweet wishes of opposite party, the defeated candidate. I am further of the view that no rules and laws appear to have been violated or contravened and Election Appellate Judge committed a patent illegality and a flagrant error of law in declaring the election of the office of the Chairman of No.2 Daldalia Union Parishad as a whole void on reversing the decision recorded by Election Tribunal.
36. Resultantly, this Rule arising out of Civil Revision Petition succeeds and the same is made absolute. Judgment and order recorded by Election Appellate Tribunal stands set aside and Judgment and order passed by Election Tribunal is restored.
37. Order of stay stands vacated.
38. Regard being had to the fact circumstances of the case I direct the parties to bear their respective costs.
Lower Court’s record be sent immediately as possible.
Ed.
Source: 53 DLR (2001) 275