Representation
Of The People Order, 1972
Articles—3
and 4
The
Election Commission is constituted under Article 118(1) of the Constitution and
it consists of a Chief Election Commissioner and such other Election
Commissioners as may be appointed by the President and they, in fact,
constitute the Election Commission for Bangladesh. In that sense, Election
Commission is a composite body, an individual member can only act under section
4 of the Order when he is authorised by the Commission itself.
In
the instant case, there is no delegation/authorization by the Commission
itself. The Chief Election Commissioner being unwell he went on leave for
treatment abroad and he verbally nominated a member to act as Acting Chief
Election Commissioner. This may at best be said to be a direction of the Chief
Election Commissioner to perform functions of the office in his absence as
Acting Chief Election Commissioner, but for exercising and performing any
powers or functions under this Order he must get authorisation from the
Commission itself, otherwise his action under the Order will be coram non judice
and without jurisdiction. The functions that the Acting Chief Election
Commissioner was performing in the instant case, was a function vested in him
under this Order.
The
Acting Chief Election Commissioner had acted coram non judice in exercising his
power in this particular case.
Jatiya Party
Vs Election Commission for Bangladesh and others, 21 BLD (AD) 11.
Article—20(1)(a)
Article
20(1)(a) of the Order provides that if there are more contesting candidates
than one in respect of any constituency, the Returning Officer shall allocate,
subject to any direction of the Commission one of the prescribed symbols to
each contesting candidate and in so doing shall, so far as possible, have
regard for any preference indicated by the candidate.
Jatiya Party
represented by Md. Moidul Islam, Joint Secretary General Vs Motassim Billah and
others, 20 BLD (AD) 69.
Article—31
(2)(d)(e)
The
Tribunal was justified in not excluding the ballot papers from counting which
contained a part of the official seal, because the law has not demanded in a
mandatory language the presence of a full seal on the ballot paper before its
exclusion from count.
Moulana
Delwar Hossain Saydee Vs Sudhangshu Shekhor Holder and others, 20 BLD (AD) 11.
Ref:
Abdul Mannan Vs. Election Tribunal, 31DLR(AD)33 1—relied upon.
Articles—31(2)(e)
and 36(4)(c)(1)
When
the counterfoils of ballot papers contain official mark it serves the purpose
of requirement of law and it does not require to be signed either by the
Presiding Officer or by the Assistant Presiding Officer and the Election
Tribunal most illegally cancelled the ballot papers of the returned candidate
having “boat symbol” of the Shambupura election centre and Domarchar election
centre and therefore, the election result of Md. Emdadul Haque Bhuiyan as a
Parliament Member has not been materially affected in any manner and his
election as member of Parliament is sustained. [Per M M Hoque]
Mr. Emdadul
Haque Bhuiyan Vs Ataur Rahman Khan and ors., 20 BLD (HCD) 74.
Article—31
(2)(d)(e)(f)
The
ballot papers which do not contain the stamp with official mark in its back and
the number of the elector mark in writing on the counterfoil by the Presiding
Officer having stamp in the counterfoil with the official mark and without
signature or thumb impression on the counterfoil of the ballot papers cannot be
treated and counted as valid votes.
Moulana
Delwar Hossain Saidi Vs S.S. Holder and others, 19 BLD (HCD) 85.
Article—31
(2)(d)(e)(I)
The
votes which are not valid votes as per requirements of Article 31(2)(d) (e) and
(f) are declared as invalid votes and those votes are deducted from the total
votes counted.
Moulana Delwar Hossain Saidi Vs S.S. Halder
and others, 19 BLD (HCD) 85.
Articles—36
and 73
When
the election petitioner did not raise any objection about the alleged rigging
in election in the two election centres namely, Shambupura and Domarchar either
to the respective Presiding Officers or to the Returning Officer, the
allegations of rigging, disturbance and other corrupt practices in the said
election centres were an afterthought which has no basis at all when after
analysing the depositions of PWs 1, 2 and 4 and the deposition of the RWs, 1, 3
to 8, 10 and 14-15 it appears that the election petitioner had totally failed
to prove disturbance and election rigging in the said two centres. [Per M M
Hoque]
Mr. Emdadul.
Haque Bhuiyan Vs Ataur Rahman Khan and ors., 20 BLD (HCD) 74.
Article—36(4)(i)(iv)
The
ballot papers that are required to be excluded from the count are fully
described in Article 36(4)(i)-(iv) of the Order. Neither the Tribunal nor the
High Court Division has any jurisdiction to add any other extraneous
requirement other than those contained in sub- clauses (i)-(iv) of clause (4)
of Article 36. These sub-clauses do not require that a ballot paper is to be
excluded from the count if it does not contain the Code number or the signature
or initial of the Assistant Presiding Officer. The High Court Division acted
without jurisdiction in excluding the ballot papers of both the appellant and
the election-petitioner containing the aforesaid omissions. Further, from the
election petition it does not appear that the election-petitioner made any
allegation as to the illegal counting of votes by the Presiding Officer of Char
Baleswar polling centre.
Moulana
Delwar Hossain •Saydee Vs Sudhangshu Shekhor Halder and others, 20 BLD(AD) 11
Articles—36
and 73
Before
reopening ballot boxes for recounting ballot papers the Election Tribunal must
be satisfied on the basis of the statements made in the election petition and
the legal evidence adduced and other materials on record that the scrutiny and
the recounting of ballot papers has become a material issue and is imperatively
necessary to resolve the controversy and to do complete and effectual justice
between the parties which is lacking in the present case. On the prayer of the
election petitioner there could not be any recounting of ballot papers when he
failed to bring home the allegations of corrupt or illegal practice against the
returned candidate and when no foundation of recounting had been laid and hence
the learned tribunal committed a patent illegality and flagrant error of law in
recounting the ballot papers. [Per A K Badrul Huq J (agreeing) with M M Haque,
J]
Mr. Emdadul
Haque Bhuiyan Vs Ataur Rahman Khan and ors., 20 BLD (HCD) 74
Ref:
Halisburys Laws of England, Vol. 14 at page 310 para 559; Ram Sweak vs Mussam
Kamil (1964)6 SCR 238=AIR 1964 SC 1249; Dr Jagjit Singh vs Giani Kartar Singh,
AIR 1966 SC 773; Jitendra Bahadur Singh vs. Krishna Behari, (1970) 1 SCR
852=(1969)2 SCC 438; Sumitra Devi vs Shri Sheo Shankar Prasad Yadar, (1973) 2
SCR 920; Balder\ Singh vs Teja Singh Swatantar (Dad), (1973) 3 SCR 381=(1975) 4
SCC 406; Chanda Singh vs Choudhury Shib
Ram Verma, AIR 1975 SC 403; Beliram Bhalaik vs Jai Beharilal Khachi, (1975) 4
SCC 417; Suresh Prasad Yadav Vs Tai Prakash Mishra, (1975) 4 SCC 822; Bhabhi Vs
Sheo Govind and others (1976) 1 SCC 687; Azimuddin Ahmed vs Election Tribunal,
Narayanganj and others, 27 DLR 594; Nurul Islam Talukder vs Munsif, 4th Court
at Chittagong and 10 others, 28 DLR375; Afzal vs Election Tribunal, 1980 ESCR
69=32 DLR(AD)186; Md. Shajahan vs Md Sadeq & another, 38 DLR(AD)275 relied.
Articles—50
and 51(2)
When
the petitioner has impleaded all the necessary parties mere impleading the
Returning Officer and the Assistant Returning Officer cannot by itself be a
ground for holding that there was total non-compliance of the provision of
Article 50 of the Order.
From
a perusal of the prayer portion of the election petition it appears that the
petitioner has fully complied with the provisions of Article 51(2) of the Order
and there is no material defect in the said petition.
Advocate
Moh. Abdul Hamid Vs Moh. Faziur Rahman, 18 BLD (HCD) 587.
Article—50
and 58(a)
Article
50 of the Order mentions the parties who are to be impleaded in an election
petition but it does not prohibit impleading of parties who may be considered
by the election petitioner as proper parties. When all the necessary parties
have been impleaded in the election petition, the joining of the Returning
Officer and the Assistant Returning Officers cannot by itself be a ground for
dismissal of the election petition under Article 58(a) of the Order.
Advocate
Mohammad Abdul Hamid Vs. Md. Fazlur Rahman, 18 BLD (AD) 96.
Articles—51(1)
and 58
It
manifestly appears that the requirements of law as enshrined in Article 5 1(1)
of the P0 No. 155 of 1972 have not been complied with in presenting the
election petition before the Election Tribunal and the election petition was
liable to be dismissed under Article 58 of the Order and the Election Tribunal
missed the true import of the election law in this regard and committed a
patent illegality in not dismissing the election petition. [Per AK Badrul Huq J
(agreeing) with M M Haque, J]
Mr. Emdadul
Haque Bhuiyan Vs Ataur Rahman Khan and ors., 20 BLD (HCD) 74.
Ref:
Mir Nabi Baksh Khan vs. The Election Petitioner and Tribunal, Government of
West Pakistan and others PLD 1957 SC 301, Gagan Nath vs Jaswant Singh and
others, 1954 SCR 892, 895=AJR 1954 SC 210; Jamuna Prasad vs. Lachchi Ram, AIR
1954 SC 686; Joyti Basu vs. Devi Ghosal, (1982) SCR 318=(1982) 1 SCC 691 = AIR
1982 SC 983; Samant N Balakrishna ETC vs. George Fernandez and others,
ETC(1969)3S CR 603= (1969)3 SCC 238=AIR 1969 SC12OI; Gajanan Krishnaji Bapat vs
Dattaji Reghobaji Meghe, (1995) 5 SCC 347 relied.
Article—53
Article
53 of the Order provides that the Commission shall appoint as many Election
Tribunals as may be necessary for trial of the election petitions and a Tribunal
shall consist of person who is or has been a District and Sessions Judge or an
Additional District and Sessions Judge.
In
the face of a bonafide apprehension in the mind of the petitioner that he may
not get any fair and impartial justice in the hand of Divisional Election
Tribunal, Dhaka, ends of justice would be served if the Election Tribunal Case
No. 2 of 1997 be transferred from the Divisional Election Tribunal, Dhaka to
any other Tribunal of competent jurisdiction.
Advocate Mohammad Abdul Hamid Vs 7’he Chief
Election Commissioner, Bangladesh Election Commission and others, 18
ILD(HCD)595
Article—53
The
Election Tribunals are appointed by notification issued by the Election
Commission and the persons or officers mentioned in such notification are the
only persons who can act as Election Tribunals and hear election cases. The
Election Tribunals have no authority to delegate their power to anybody else.
The view taken by the learned Subordinate Judge that since he was holding
charge of the office of the District Judge he was competent to dispose of the
election case is totally wrong and unacceptable.
Mosharaf
Hossain Shahjahan Vs Election Tribunal and District Judge, Bhola and others, 17
BLD (HCD) 182.