Rules—38 and 39

Recounting of ballot papers—Whether
should be made by Tribunal long after the election was held on the mere asking
by an interested party—Ballot papers have special sanctity of their own and
their secrecy should not be infringed unless recounting becomes indispensably
necessary to determine the dispute—In the absence of clear justification no
recounting should be ordered or made—Recounting should be refused if no prayer
had been made for recounting to the Presiding Officer—Recounting of ballot
papers by the Tribunal is not specifically provided in the Election Rules but
it is within the inherent powers of the Tribunal to decide election
dispute—Election was held and ballot papers were counted in orderly manner and
no objection was raised on the spot before the Presiding Officer—In the
circumstances recounting was not legally made.

Shajahail Vs. Md. Sadeq and another, 6 BLD (AD) 236

28 DLR (Dhaka) 375—Cited. Rule—49


Fresh election—Whether can be ordered
by the Election Tribunal without declaring the election of the returned
candidate void—Tribunal could not come to definite finding whether double
markings in the ballot papers were made by the respective voters while casting
votes or were post election acts of some other persons—Neither the election of
the returned candidate has been declared void nor has the appellant been
declared elected in place of the returned candidate though he was found by the
Tribunal to have obtained 52 votes more than his opponent—Omission to declare
the respondent’s election void is not a mere omission—It is due to the fact
that Tribunal itself was not satisfied that the double markings on the 68
ballot papers of the returned candidate were in existence at the time of
counting by the Presiding Officer—When the tribunal itself was not in a
position to say whether double marks were post election acts or were the acts
of the respective voters, dcc- I tion of the returned candidate should not have

interferred with—Presumption of due election is in favour of the returned
candidate whose election should not be declared nullit unless the Tribunal is
satisfied that election has been materially affected by some illegal acts or
contravention of some rules—Ordering fresh election without declaring election
of the returned candidate void is clearly illegal

Shahjahan Vs. Md. Sadeq and another, 6 BLD(AD)236

28 DLR (Dhaka) 376—Cited.