Election Commission is a composite body an individual member can only act under Section 4 of the Order when he is authorized by the commission itself. [Para-8]
Jatiya Party Vs. Election Commission & Ors. 10 BLT (AD)-4.
If Article 31(2)(d)(e) is to be followed in its full letter and spirit then a ballot paper is to be stamped on its back with full official mark and a counterfoil is to be stamped with full official mark not on the back but on the front side. This is the correct and legalistic position, but during the rush that follows a brisk polling it may not be possible for Presiding Officer or the Assistant Presiding Officer to follow Article 31(2)(d)(e) in its full letter and spirit and they may have to opt for satisfying the said Article in substance by putting the official mark on the back of the ballot papers leaving a part of the official mark in the ballot paper and the remaining part of the same in the back of the counterfoil. If, however, the ballot paper does not contain any official mark, either in part or in full the Presiding Officer has no option but to exclude it from count. The impression of a part of the official seal on the back of a
ballot paper is a shortening of the elaborate procedure under Article 31(2)(d)(e) under pressure of circumstances. We repeat what we stated in the case of Abdul Matin Ms. flection Tribunal, 31 DLR (AD) 331. “The standard of care which is required with such strictness as in putting the official mark and initial may, due to bonalide error, tall short but that should not effect the valuable right of franchise” and further “It cannot be that the legislature requires a voter to be vigilant regarding the performance of duties by the Government functionaries”. We, therefore, hold that 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.
Mou. Delwar Hossain Sayedee Vs. S. Shekhor Haider & Ors. 9BLT(AD)-245
It must be remembered that the ballot papers that are required to be excluded from the court 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 tlltlll those contained in sub-clause (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 we do not find that the election-petitioner made any allegation as to the illegal counting of votes by the Presiding Officer of Char Baleswar polling centre. We have quoted the points for determination by the flection Tribunal. There is no point for determination on illegal counting of votes at Char Baleswar polling centre. The election -petitioner raised other specific allegations in connection with the centre and the Tribunal specifically found those allegations not to have been proved. In such circumstances, the recounting of votes of Char Baleswar polling centre was uncalled for and without jurisdiction and was an unnecessary roving fc exercise. The High Court Division did not apply its mind to the contending issues between the parties. Its rejection of the valid ballot papers of the applicant at Char Baleswar polling centre without even seeing them was wholly without jurisdiction and its rejection of valid ballot papers of the appellant at Bhairampur polling station was also without j urisdiction.
Mou. Delwar Hossain Sayedee Vs. S. Shekhor Haider & Ors. 9 BLT(AD)-245.
Allocation of a symbol
It the present case the controversy was with regard to allocation of symbol which the Returning Officer was authorized to do under Article 20(1) of the Order and that order was challenged before the Election Commissioner and the Election Commissioner of Bangladesh has got the power of review under Article 91(b) of the Order. Thus the Election Commission has got the authority to decide the matter. Without entering into the question as to whether the authority exercised by the Acting Chief Election Commissioner is a quasi judicial order or an order in its administrative capacity, it can be safely said that there was no delegation by the Election Commission itself to perform such function under the Order we are of the view that the Acting Chief Election Commissioner had acted Coram non judice in exercising his power in this particular case.
Jatiya Party Vs. Election Commission & Ors. 10 BLT(AD)-4