Md. Khalilur Rahman Vs. Md. Alam Bepari and Others

Md. Khalilur Rahman (Petitioner)

Vs.

Md. Alam Bepari and Others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Judgment

May 20, 2008.

Lawyers Involved:

Md. Khurshid Alam Khan, Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Petitioner.

Not represented-For the Respondents.

Civil Petition for Leave to Appeal No. 1565 of 2007.

Judgment

                Mohammad Fazlul Karim J.- This petition for Leave to appeal is directed against the judgment and order dated 26.07.2007 passed by the High Court Division in Civil Revision No.1730 of 2006 arising out of judgment and order dated 20.4.2006 passed by District Judge, Pirojpur in Election Appeal No.03/2005 dismissing the appeal and affirming the order No. 30 dated 20.7.2005 gassed by  Senior Assistant Judge and Bicharak of the Election Tribunal Case No.06/2003 allowing the application for recounting of ballot papers on contest against the petitioner.

2. The respondent No. 1 filed Election Tribunal Case No. 6 of 2003 before the Election Tribunal and Assistant Judge, Mothbaria, Pirojpur impleading the petitioner challenging the election of ward No.6 Tikikata Union Parishad under Mothbaria Upazilla held on 27.1.2003 for the post of member of the said Union Parishad. It was alleged that several candidates contested for the post of member of the Union Parishad in the said election and the election result was declared showing the petitioner to have received 369 votes, the respondent No.1 have received 370 votes and respondent No. 2 got 292 votes, respondent No. 3 got 113 votes, respondent No.4 got 75 votes and respondent No. 5 got 41 votes. It was also alleged that the present respondent No.1 was declared elected by 5 votes but subsequently by manipulation or the presiding officers and other concerned officers the present petitioner was declared elected by a margin of one votes. There are several other allegations including the allegation of rigging, casting of false votes including casting of votes of absentee and dead persons. The respondent No.1 was contesting the   election with a symbol “Rickshaw” and the symbol of the petitioner was “Lock and key”, the respondent No.1 of the election petition has been contesting the election petition by filing a written objection contending that the election took place peacefully, fairly and there was no rigging of casting of false votes in the names of dead persons.

3. The petitioner of the election petition 5 examined 3 P.Ws and the respondent No. 1 of the election petition examined 4 O.P.Ws the petitioner or the election petition filed an application on 07.07.2004 for recounting of ballot papers on the ground that the petitioner has established a proper foundation for recounting of ballot papers. The respondent No.1 of the election petition seriously contested the plea of recounting of ballot papers

4. The trial Court on consideration of the evidence including the facts and circumstances of the case by judgment and order dated 24.07.2005 allowed the prayer for recounting of ballot papers on depositing Tk. 300.00 by the election petitioner.

5.  The respondent No. 1 of the election petition then preferred Election Appeal No. 3 of 2005 before the Appellant Tribunal. Upon hearing the matter and on consideration of the evidence on record the appellate tribunal came to the finding that the petitioner of the election petition has laid a factual foundation for recounting a ballot papers and accordingly dismissed the appeal and affirmed the order of the Election Tribunal by the impugned judgment and order dated 20.04.2006.

6. Mr. Md. Khurshid Alam Khan, learned Advocate appearing for the present petitioner submitted that the respondent No.1 raised no written objection to the Returning Officer or the Presiding Officer for recounting the ballot paper at the time of counting votes. It is now settled principle of law that in order to make out a case for recounting the person who challenges the counting has to prove that at the time of counting votes by the Presiding Officer a contesting candidates or his election agents upon raising specific objection as specifically requested the Presiding Officer to re-count the ballot papers and the same was improperly refused, or was not done in accordance with law. But in the instant case no written objection was raised but the Courts below without following settled principle of law most illegally allowed the application of recounting which cannot be sustained in the eye of law; that there is no factual foundation for recounting of ballot papers. In absence of any factual foundation no order for re­counting can be recorded by the Tribunal. Order of recounting of ballot papers can be made when the Tribunal is satisfied that making of such order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. It is settled principle that re-counting must not be ordered only on prayer of an unsuccessful candidate whose sole effort is directed to unseat the returned candidate; that the allegations as reflected in the petition by the respondent No.1 against the petitioner are unreasonable which bears is no legal value. The petitioner is not the authority or had no access in preparation of voter list. Moreover, if there is any dispute in the voters’ list that dispute ought to nave raised at the time of publication of the voters’ list that dispute to have raised at the time of publication of the voters’ list. But the respondent No.1 never raised any question/objection as to the voters’ list before publication of the election result. The respondent No.1 objected against the voter list soon after he found himself as unsuccessful in the election. Hence the Court below committed serious error of law without considering these factual aspects. Hence the impugned order cannot be sustained in the eye of law; that the recounting of ballot papers must not be ordered lightly or as a matter of course and also on the sweet whishes of the unsuccessful candidates. The prayer for re-counting if not made by the defeated candidate or his agents or any person on his behalf before the Presiding Officer on conclusion of counting at the polling station as embodied in Article 36(5) (b) or before the Returning Officer is contained in Article 37(5), the foundation for recounting of ballot papers cannot be said to have been laid.

7. It appears that the Election Appellate Tribunal has considered the evidence of P.W.1, 2 and 3 and also considered the facts and circumstances of the case and   the evidence of O.P.W. No.1 and 2 and came to the finding that the election petitioner has succeeded in proving factual foundation for recounting of the ballot papers. The Election Appellate Tribunal appears to have applied his mind in the facts and circumstances of the case and the evidence on record keeping in view that there was a difference of only one vote between the petitioner and the respondent No.1 and admittedly 5 ballot papers, which were duly cast during election, were found missing and on consideration of these facts the Election Tribunal came to the conclusion that it would be proper for ends of justice if the ballot papers are recounted in presence of the concerned parties.

In view of the above, we find no substance in the submission of the learned Advocate for the petitioners.

Accordingly, the petition is dismissed.

Ed.

Source: 28 BLD (AD) (2008) 241

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