Moulana Mokhter Ah­med Vs. Mohammadul Mokhter Usmani & others

Moulana Mokhter Ah­med (Appellant)

Vs.

Mohammadul Mokhter Usmani & others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ah­med J

M.H.Rah­man J

A.T.M. Afzal J

Judgment

March 17, 1987.

The Local Government (Union Parishad) Ordinance, 1983 (51 of 1983).

Counting was done in presence of the parties, their lawyers and the presiding officers throughout the day with intensive scrutiny. The parties confronted with application on objection in respect of particular ballot papers and those were met. So, it is not possible that a valid ballot paper was left for counting in favour of either party. So, even though it is unfortunate that the decision in the case turned on two marginal votes only, there is no scope of interference………………..…(16 & 17)

Lawyers Involved:

T.H. Khan, Senior Advocate, (Abu Taher Chowdhury, Advocate with him) instructed by Mr. Aftab-Advocate-on-Record-For the Appellant.

Syed Ishtiaq Ahmed, Senior Advocate, (Mahmudul Islam, Advocate with him) instructed by Sharifuddin Chaklader-Advocate-on-Record–For the Respondent.

Ex-parte- Respondent Nos. 2-13.

Judgement:

A.T.M. Afzal J. – This appeal, by special leave at the instance of the elected chairman of No. 6 Jhilonza Union Parishad, Cox’s Bazar arises from judgment and order dated 25 August, 1986 passed by the High Court Division (Circuit Bench, Chittagong) in revision upholding the decision of the Election Tribunal, confirmed in appeal, declaring the election of the petitioner void and further declaring respondent No.1 as Chairman of the said Union Parishad.

2. Chairman election for the aforesaid Union Parishad was held on 7.1.84. Appellant secured 4263 votes and his nearest rival respondent No. 1 secured 4236 votes. Thus the petitioner was declared elected by a margin of 27 votes.

3. Respondent No. 1 brought an election peti­tion under Section 26 of the Local Government (Union Parishad) Ordinance, 1983 before the Election Tribunal, Cox’s Bazar making various allegations against the petitioner and in the matter of conducting the election and in counting of results. It was alleged that there was widespread adoption of unfair means, undue persuasion and influence, bribery and disorderly conduct near the polling station, that there was collu­sion between the presiding officers and the appellant, failure to maintain secrecy of voting, breach of offi­cial duties etc. and casting of votes in the name of dead persons and absentee voters. It was further al­leged that the counting of votes was done under in-sufficient light and amid disturbed condition, that ob­jection was raised demanding recounting of votes of all the centers but the said recounting was never done in spite of assurance given by the election officials.

4. The appellant contested the election petition by filing a written objection denying all the material allegations made by the respondent.

5. Several witnesses were examined on either side and documents proved in support of respective cases. During the pendency of the election petition as many as three Munsifs came in and acted as Election Tribunal at Cox’s Bazar and finally the case record having been transferred by the Election Commission to the Upazila Munsif, Chakaria, the judgment was delivered by the Election Tribunal, Chakaria on 23.12.85.

6. As to the allegation of illegality/irregularity in the conduct of the election the Tribunal found that they were not proved by proper evidence and the issue was answered in the negative. On the basis of re­counting of ballots at the Tribunals, however, it was found ultimately that the respondent secured two votes more than the appellant. The Tribunal observed that the election result was materially affected by re­counting before the Tribunal and it, therefore, declared the election of the appellant void and further declared the respondent as Chairman of the Union Parishad concerned.

7. The appellant unsuccessfully took an appeal against the decision of the Tribunal and then an un­successful revision against the appellate order.

8. Coming to this Division with a prayer for leave to appeal submissions were made disputing and raising question as to the recounting of ballots by the Tribunal which appeared to merit consideration as the appellant was unseated by a margin of two votes only by a process of recounting long after the election.

9. At the hearing of the appeal, however, Mr. T. H. Khan learned counsel for the appellant frankly sub­mitted that he does not dispute the authority and ju­risdiction of the Election Tribunal to take recourse to recounting of ballots in a proper case. Indeed it is too late in the day to lake exception to such jurisdiction of the Election Tribunal after all the pronouncements made by this court which have been noticed by the Appellate Tribunal and the High Court Division. Mr. Khan does not also seriously dispute that in the in­stant case there were sufficient basis and evidence for allowing the prayer made on behalf of the respondent for re-counting of votes. Mr. Khan is obviously con­scious of the findings made by the Tribunals in this behalf which read as follows; “In the above circum­stances and facts the recounting by the Tribunal is not illegal and irregular, since the counting of the votes by the presiding officers were challenged and allega­tions made in the plaint”.(Election Tribunal).

10. The District Judge in appeal found:

“Thus from the statements in the petition before the Tribunal and the statements of the P.Ws. recorded by the Tribunal it-appears that the respdt. pett. has been able to prove that the counting of the ballot papers were not properly done and that some of the valid ballot papers were excluded from counting in favour of the respdt. Petr.and some invalid ballot papers were counted in favour of the applt. O.P. In the above circumstances, it has been clearly established that there were sufficient grounds for the Election Tribunal 10 dispose of the matter after recounting of the ballot papers.”

11. Mr. Khan, however, raised objection as to the procedure adopted by the Tribunal in recounting the votes intermittently by different presiding offi­cers of the Tribunal for more than a year and to the use of the consolidated result sheet (order dated 31.12.84) and other notes (as in the order sheet) kept with the record by preceding Munsifs, by the Elec­tion Tribunal which ultimately delivered the judg­ment on the basis of the records which were not pre­pared by it. We have examined the order sheet of the Tribunal carefully in order to see if the result of the counting can be said to have become doubtful be­cause of the procedure followed in the case to which objection has been taken.

12. It may be pointed out at the outset that it is not correct to say that the recounting went on for over a year. As a matter of fact the recounting began following the application by the respondent on 29.8,84 and concluded by Mr. Humayun Rashid, Munsif who left his office by the end of 1984. Be­fore leaving he recorded the results of the recounting in his order dated 31.12.84. It is found from the Tri­bunal’s judgment that the appellant went on appeal against the order dated 31.12.84 and the same was dismissed by the District Judge. Even then the appel­lant went on filing applications against every order that was to his advantage and the Tribunal upon hear­ing the parties and on the basis of record disposed of each objection giving reasons.

13. In the order dated 31.12.84, the Tribunal while bringing on record the results of the recounting mentioned that the ballot papers of four centers, namely, Moktarkul Suratia Madrasa, Cox’s Bazar College Centre, Madhya Jhilonja Primary School and South Kharulia Primary School were not exam­ined minutely to see whether there was official seal or mark on the back of the ballot papers and the final judgment would be pronounced after doing that Job. Order dated 24.3.85 shows that the aforesaid unfi­nished job was done on that date in presence of the party’s lawyers and the Tribunal again recorded the re­sults of recounting for all the seven centers where election was held. It has been clearly mentioned in the said order that only the valid and legal ballots have been counted in making the record of counting.

Which were rejected on the ground of “double seal” (later order shows it was “double mark” and not “double seal.”) Thus the appellant, it seems, had no other grievance as to recounting except reconsidera­tion of certain ballots of only one centre as aforesaid. Respondent raised objection to the prayer made and the Tribunal fixed 4.4.85 for hearing of the matter. Upon hearing on that date the Tribunal in its order dated 8.4.85 stated that the appellant claimed that there was valid seal on his symbol Khejur Gach on the disputed ballots but it is found upon scrutiny that there was seal on the symbol of another candidate which were however indistinct than the former. The disputed ballots were again examined in presence of the parties and the Tribunal mentioned in its order that no difference between the seals was visible by naked eye and it was held that the said ballots were correctly declared invalid. It was also mentioned in the said order that no proof was available of any post election tampering of election materials. It seems that the appellant raised some new & further objections as to certain ballots and the Tribunal considered rejected them.

14. It will be seen that the succeeding Munsifs worked on the basis of the consolidated result sheet (order dated 31.12.84) and from time to time dealt with the applications as and when filed by the parties, particularly by the appellant raising objection for leaving out certain ballot papers from counting in his/their favour. We have found nothing illegal or ir­regular in the order sheet following the order dated 31.12.84. Each and every application filed thereafter has been considered properly and rejected on merit. The Tribunal in its final judgment has objectively disposed of each and every objection raised by the ap­pellant in the matter of not counting particular ballot/’ ballots in his favour and counting some in favour of the respondent. No objection can be taken to the use of the matters on record of the case by the succeeding Munsifs because the law clearly provides for such use.

15. Mr. Khan faintly raised an argument that the election materials were tampared with before recount­ing and as such result of the recounting could not be relied upon. In the order sheet of the Tribunal there is nothing to show that any objection was taken as to the alleged tampering of the election materials before recounting began. It is true that some gunny bags were in torn condition. The Appellate Tribunal upon noticing the evidence observed that:

“So it is presumed that the authority took all possible steps for protection and preservation of the bags containing the Election materials for protection from subsequent mischief as the au­thorities were informed of the apprehension of the mischief before hand and to keep the gunny bags in the same condition as those were just af­ter the counting of ballot papers by the Election authorities. It may also be presumed that the torn condition of the gunny bag was from the very beginning and that it was not done by either of the parties with malafide intention.

So, the presumption of the mischief committed by the respdt. petr. as alleged by the applt. O.P. is not at all supported and established by the papers on record.”

16. It appears from the order sheet that the counting was done on all the days in the presence of the parties, their lawyers and the Presiding Officers and both sides enthusiastically took part in the pro­cess of re-counting. They were filing application after application in respect of particular ballot paper/papers either for counting in their favour or alleging illegal rejection. As already seen, each application was dis­posed of on merit and with reason. After all this long exercise before the Tribunal in the matter of re­counting, Mr. Khan has rightly refrained from ar­guing that a valid ballot paper was not counted in fa­vour of the appellant or that an invalid ballot paper was counted in favour of the respondent.

17. In view of the discussion above we find no substance in the contention ultimately raised by the learned counsel for the appellant and thus no scope to interfere legally with the impugned order uphold­ing the concurrent decision of the Tribunals below, unfortunate it may seem though that the decision in the case turned on two marginal votes only.

The appeal is, accordingly, dismissed without any order as to cost.

Ed.

Source: 40 DLR (AD) (1988) 165