Nazir Ahmed (Appellant)
Bangladesh Election Commission & ors. (Respondents)
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
December 14, 1988.
The learned judges of the High Court Division finding the result of the election controversial, they should not have interfered into such controversial matter in resolving those by mere affidavit on the event of the fact that questions of fact were disputed. The judgement and order of the High Court Division is set-aside and the writ is recalled……….(5)
Nurullah, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocates-on-Record—For the Appellant.
Ishtiaq Ahmed, Senior Advocate (Mahmudul Islam, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No. 10.
Respondent Nos. 1-9— Not Represented.
Civil Appeal No. 28 of 1988.
Badrul Haider Chowdhury J.- Leave was granted to consider the question whether the High Court Division was correct in making the Rule absolute in the writ petition, when on its own showing certain disputed question of fact has been raised.
2. The petitioner and respondent No. 10, along with others, contested the election which was held on 10th February, 1988. After the poll was taken in 3 centres a dispute arose regarding the counting of votes in one centre, namely, South Charbarali Primary School Centre. The Presiding Officer submitted a report showing that the petitioner had got 296 votes in that Centre; but by a subsequent report the Presiding Officer stated that the petitioner got 961 votes. The Election Commission after hearing both the parties and considering the reports of the Presiding Officer and other Election Officials, by an order dated 27th April, 1988, accepted the subsequent report of the Presiding Officer which shows that the petitioner obtained 961 votes and proceeded to publish the result of the election of Chairman in the Official Gazette. At this stage, respondent No. 10 filed the Writ Petition challenging the Election Commission’s order.
3. The High Court Division issued a Rule and after hearing the parties set aside the Election Commission’s order, among other things, with the following finding and observations:-
“It is simply impossible to decide at this stage which one is correct, but the Election Commission directed the acceptance of one as against the other, and it is unclear what prompted the Commission to come to that conclusion. While disputed question of fact cannot be resolved here on affidavits, we are of opinion that the Election Commission on the basis of materials before it could not prefer one result as against the other given by the Presiding Officer. In that view of the matter we set aside the impugned order of the Election Commission dated 27th April, 1988.”
4. Mr. M. Nurullah, the Learned Counsel appearing for the petitioner canvassed that the disputed question of fact was involved and the learned Judges of the High Court Division themselves have noticed but even then the Rule is made absolute in a highly controversial matter.
5. In this case the Election Commission has directed the acceptance of the result given by the Returning Officer on the basis of the result given by Presiding Officer. The aggrieved parties can always raise this matter before the Election Tribunal and it is nobody’s case that the order of the Election Commission is immune from challenge before the Tribunal. When the learned Judges of the High Court Division have found the result controversial, with respect, the learned Judges should not have interfered into such controversial matter and resolving them by mere affidavit when questions of fact were disputed. The order of the High Court Division was erroneous.
In the result, this appeal is allowed without any order as to cost. The judgment and order of the High Court Division is set aside and writ is recalled.
Source: 41 DLR (AD) (1989) 87