Laizu Begum & Others (Appellants)

Vs.

Election Commission and ors. (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ah­med J

M.H. Rah­man J

A.T.M. Afzal J

Judgment

November 14, 1989.

The Union Parishad (Election) Rules, 1983 Rules 6, 9, 26 & 29

The Local Government (Union Parishads) Ordinance, 1983 (LI of 1983), section 26

Harmonious interpretation

It is apparent that for change of polling station whether in the case of first election or repoll a period of fifteen days to intervene between the date of change and that of the poll is necessary. In case of any indispensable necessity for change of polling station the returning officer must seek approval of the Election and approval so given even after the poll was over, was valid and legal………..(8 & 9)

Lawyers Involved:

Dr. Kamal Hossain and Fazlul Karim, Senior Advocates, instructed by Sharifuddin Chaklader (In C.A. Nos. 58 & 59/89) and M. Nowab Ali (In C.A. No. 60 of 1989), Advocates-on-Record—For the Appellants (in all the cases).

S.R. Pal, Senior Advocate, (Zakir Ahmed, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record — For Respondent No. 6 (In C.A. No. 58/1989)

Not represented—Respondent Nos.1-5 and 7 to 8

Syed Ishtiaq Ahmed, Senior Advocate (Zakir Ahmed, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record — For Respondent No. 4 In C.A. No. 59/1989).

Not represented—Respondent Nos. 1 -3.

M. Nurullah, Senior Advocate (Zakir Ahmed, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record— For Respondent No. 6 (In C.A. No. 60/89).

Not represented—Respondents Nos. 1—5 and 7& 8.

Civil Appeal No. 58 of 1989. Civil Appeal No. 59 of 1989. Civil Appeal No. 60 of 1989.

(From the judgment and order, dated 25 May 1989 passed by the High Court Division, Rangpur Bench, in Writ Petition Nos. 8 of 1989, 26 and 27 of 1988 respectively).

Judgment:

Shahabuddin Ahmed J. – In these three ap­peals by special leave a common question is in­volved. It is whether Rule 6 of the Union Parishad (Election) Rules, 1983, as to fixing polling stations and change thereof shall apply to a re-poll and if so, whether a re-poll, held in violation of this Rule, will be necessarily vitiated. The High Court Division, without specifically expressing its view on this question, disposed of the matters observing that the question being connected with disputed questions of fact as to whether the result of the election has been materially affected by the change of polling stations should better be determined by election-petitions in­stead of by writ petitions.

2. These appeals have arisen from Writ Peti­tions No. 8 of 1989 and 26 and 27 of 1988. Elec­tions for the Offices of Chairmen of three Union Parishads, namely Pandal, Bajra and Daldalia, in the district of Kurigram, were first held on 10 February 1988. There were three to four polling stations in each of these Unions, but due to disturbances the election was stopped by the Presiding Officers in three polling stations, one in each Union. The Re­turning Officer, by an order dated 5 April 1988, fixed the date for adjourned polls in those three pol­ling stations on 14 April 1988. On 13 April, 1988, that is, one day before the election, he changed the polling stations; from Apurkhata Government Pri­mary School to Tanuram Apurkhata Government Primary School in Pandal Union, from Khamar Magura Government Primary School to Shahaberkuti Aftadia Madrassa in Daldalia Union and from Bajra Paschimpara Dakhil Madrassa to Bojra Paschimpara Maktab in Bazra Union. Polls were taken according­ly on the following day in spite of objection raised by some of the contesting candidates; particularly the respondents. The result of the election was an­nounced and it was going to be published in the offi­cial Gazette by the election Commission. At this stage the election in each of these three Unions was challenged by the three separate writ petitions, as mentioned above, taking the ground that the manda­tory provision in Rule 6 which requires publication of the list of polling stations at least fifteen days be­fore the polling day was wilfully disregarded by the Returning Officer, that the Election Commission’s order not to change the polling stations at the elev­enth hour was disregarded by him and further that the sudden change of the polling stations created difficul­ties for the voters who could not cast their votes in consequence thereof.

3. Each of these writ-petitions was contested by the respective successful candidates—the respon­dents—on a common ground that there was no malafide on the part of the Returning Officer in changing the polling stations, that the Returning Officer did not alone take the decision to change the polling sta­tions but he acted on the advice of the local adminis­tration including the Deputy Commissioner, the Su­perintendent of Police and the Nirbahi Officer, who thought it expedient to change the polling stations for safety of the ballot papers and security of the Pre­siding and Polling Officers, that the Election Com­mission was consulted and its approval was obtained for the change of the polling stations and that it be­ing an adjourned poll in each case and not a new election, no voters or candidates were misled by the change of place. The High Court Division after hearing the parties discharged the Rules. We grant­ed leave on the same grounds as were agitated in those petitions and, in addition, a ground for malice in law was included, that is, whether the Returning Officer acted in wilful disobedience of the Election Commission’s order.

4. Dr. Kamal Hossain, learned Counsel ap­peared for all the three appellants, namely Laizu Be­gum, Atiur Rahman and Nurul Islam Sarkar; Mr. S.R. Pal, Syed Ishtiaq Ahmed and Mr. Md. Nurullah, learned Counsels, appeared respectively for the respondents in these appeals. Dr. Kamal Hossain has mainly relied upon Rule 6(1A) which requires the Returning Officer to publish the list of polling sta­tions at least fifteen days before the polling day and Rule 6(1B) which provides that the list of polling stations published under sub-rule (1A) shall not be changed without the approval of the Election Com­mission. He has emphasised the fact, which was also not disputed, that the election was to be held, according to the notice dated 5 April 1988, on 14 April, 1988, but the polling station in each case was changed in the evening of 13 April 1988. He has also contended that the approval of the Election Commission was not taken; rather the Election Commission disapproved the proposed change by an order dated 11 April 1988, though after the polls were taken, post-facto approval was given which is not an approval in the eye of law.

5. Mr. S.R. Pal, whose argument has been adopted by Mr. Syed Ishtiaq Ahmed and Mr. M. Nurullah, has contended that Rule 6, particularly the provisions in sub-rules (1A) and (1B) are meant for an election which is to be held for the first time, and not to an adjourned poll, and that for governing an adjourned poll a specific provision has been made in Rule 29 and that Rule 29 does not require any partic­ular period of time, such as fifteen days, to ensue from the date of fixing the polling stations to the dale of the poll. Secondly, the learned Counsel has contended that even if Rule 6 applies to a re-poll, but it has been violated in the special and exception­al circumstances of these cases, mere violation of the rule did not materially affect the result of the elec­tion. He has also contended that to determine elec­tion disputes or matters related thereto, should better be determined by an election-petition. In this connection, learned Counsel has referred to our decision on an election matter in the case reported in 41 DLR (AD) 68 and argued that the writ petitions in ques­tion are themselves not maintainable.

6. For proper appreciation of the question in­volved, it is necessary lo reproduce the relevant rules.

“6. Polling stations and polling compart­ments. — (1) The Returning Officer shall, subject to any direction of the Election Commission, provide one or more polling stations for each ward and each polling station may contain as many pol­ling compartments as may be necessary for vot­ing by male and female voters separately.

(1A) The Returning Officer shall, at least fifteen days before the polling day, publish the list of polling stations locally at some promi­nent places in the wards concerned as well as the office of the Returning Officer and the office of the Union Parishad concerned.

(1B) The list of polling stations published under sub-rule (1A) shall not be changed with­out the approval of the Election Commission.

(2)…………………………………………

(3)………………………………………….

(4)………………………………………….

(5) No polling station shall be located in any such premises as belong to, or are under the control of, any candidate.”

“9. Notification of days of different stages of election. — (1) For the purpose of holding an election, the Upazila Nirbahi Officer or the Dep­uty Commissioner, as the case may be, shall, subject to such directions as the Election Com­mission may give in this behalf, by notification in official Gazette, appoint—

(a) a day, at least five days after the dale of such notification, for the nomination of candidates;

(b) a day for the scrutiny of nomination papers;

(c) a day on or before which candidature may be withdrawn; and

(d) a day, at least fifteen days after the with­drawal day, for taking of poll.”

“26. Place and hours of poll.— The Return­ing Officer shall, subject lo any direction of the Election Commission, fix the place (hereinafter referred to as polling station) at which the poll shall be taken between the hours from 8 a.m. to 5 p.m. and give public notice of the place and hour so fixed.”

“29. Adjourned poll.— (1) If, at any time, the poll at the polling station is interrupted or obstructed for reasons beyond the control of the Presiding Officer, he shall slop the poll and in­form the Returning Officer that he has done so.

(2) Where a poll has been stopped under sub-rule (1), 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.

(3) All voters shall be allowed to vote at the fresh poll taken under sub-rule (2) and no vote cast al the poll slopped under sub-rule (1) shall be counted.”

7. Upon a plain reading of these rules it is found that from the date of withdrawal of nomination papers to the date of election at least fifteen days’ time must be given under Rule 9. Similarly at least fifteen days’ time shall be given from the dale of publication of the list of polling stations to the date of actual election. These two provisions of fifteen days’ intervening time are mandatory. But as to change of any polling station after it was fixed and notified under Rule 6(1) and 6(1A), no provision for any intervening time has been made, which means that it is not necessary that from the date of change of a polling station a further period of fifteen days shall elapse before the poll is held. The only manda­tory requirements are that the change is made with the approval of the Election Commission and that the changed polling station “shall not be located in any such premises as belong to, or are under the con­trol of, any candidate”. But though no specific inter­vening time—from the dale of change of a polling station to the dale of poll—has been provided in the rules, it does not mean that the Returning Officer may shift the place of poll just on the eve of the polling giving no opportunity to the voters to know about the change creating thereby difficulties for them to cast their votes in time.

8. Dr. Kamal Hossain is strongly of the view that the provision of fifteen days’ intervening time should apply in the case of the change of a polling station also. It is difficult to accept this view in the face of clear language of Rule 6 which does not pro­vide for any intervening period. Mr. Paul contends that Rule 6 is not applicable to a re-poll which, he says, is governed by the separate and specific provi­sion in Rule 29. Rule 29, as quoted above, contains similar provisions for fixing a dale for re-poll with the approval of the Election Commission. Rule 29 (2)(c) empowers the Returning Officer to fix the place at which the fresh poll shall be taken; but it does not contain any provision for change of the place once fixed. But it appears that in case of any indispensable necessity for any change, the Returning Officer must seek the Election Commission’s approval, in the same way as approval is required in the case of change of place in a new election under Rule 6(1B). Both these rules, 6 and 29, must be read together so as to arrive at a harmonious interpreta­tion of the rules governing the election as a whole. It is apparent that for change of a polling station— whether in the case of a first election or a re-poll—a period of fifteen days to intervene between the date of change and that of the poll is not necessary.

9. In the three instant cases, the change of the polling stations is found to have been made by the local administration on the ground of security—a fact which has not been disputed by anybody. In the previous election held on 10 February 1988, polling was stopped in these stations due to violent distur­bances. When the re-poll was arranged in these Cen­tres by an order of the Returning Officer dated 5 April 1988, the Presiding Officers and the Polling Officers expressed their inability to go to those plac­es for fear of life, pointing out that on the previous occasion they had been rescued from the furious mob by the police and the B.D.R. personnels. In view of this position, the Deputy Commissioner, after con­sultation with the Superintendent of Police and the Nirbahi Officer, thought it necessary to change the stations and for that purpose he himself initiated the proposal to the Election Commission seeking its ap­proval. It appears that the Election Commission by their telegram dated 11 April, 1988 refused approval; but on further insistence by the Deputy Commis­sioner, the Election Commission reviewed its deci­sion and accorded its approval to the proposed change, though the approval came after the election was over. In such circumstances, the approval may be safely taken as due approval. There is no evidence that by this change of polling stations voters were misled or they failed to cast their votes. Respondents have produced papers showing that there was heavy polling in all these three Centres. One of the allega­tions of the appellants is that their voters were pre­vented by the rival candidates from attending the pol­ling stations. If this is so, then there was no confusion as to where the voters were to cast their votes. This allegation that voters were obstructed from casting their voles is purely an election dispute for the determination of which specific forum has been created, as has been rightly pointed out by the High Court Division.

In the result, the appeals are dismissed.

No order as to costs.

Ed.

Source: 42 DLR (AD) (1990) 180