Representation of the People’s Order, 1972

Representation
of the People’s Order, 1972

[P.O.
No.155 of 1972]

Article-4

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.

Jatiya Party Vs. Election Commission &
Ors. 10 BLT(AD)-4

Article —31

The
Election Tribunal is at liberty to consider the effect of having such hole in
the gunny bag while inspecting the documents sent in the said bag and the
Tribunal may examine the presiding officer and or other election officers
concerned in the pole of Burudia High School Polling Centre as to the position/circumstances
causing hole in the gunny bag. Mere appearance of hole in the gunny bag in
which the documents have been sent cannot, in our view, invalidate the order of
the Tribunal calling for the records in question.

Dr. Alauddin Ahmed Vs. Md. Idris Ali Bhuiyan
& Ors. 15 BLT (AD)04

Article-31(2)(d)(e)

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. Election 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 bonafide error, fall short but that
should not affect 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. Deiwar Hossain Sayedee Vs. S. Shekhor
Halder & Ors. 9 BLT(AD) -245

Article-36(4)(i)-(iv)

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 than 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 Election 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 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 jurisdiction.

Mou. Deiwar Hossain Saydee Vs. S. Shekhor
Halder & Ors. 9 BLT(AD)-245

Article-44 AA(4)

In the
facts of the instant case and in view of the above discussion, it cannot be
said the election of the returned candidate has been procured by the illegal or
corrupt practice discussed above. The submission of the return of election
expenses came after the election took place and the illegal practice of not submitting
the return in accordance with the law and the corrupt practice of not
disclosing all sources of fund as required by Article 44AA(4), would not have
any direct bearing on the election. Hence I am not satisfied under Art
63(1)(c). However, clearly the returned candidate and/or his Election Agent
have committed corrupt and illegal practice in the way they have compiled the
return of election expenses and the supporting bills and receipts (or lack of
them) and the failure to notify subsequently received funds: and neither has
complied with the mandatory requirement of law to swear the affidavit in Form
XVIIE and XVIIF, at the end of the election expense return, that I am satisfied
under Art. 63(1)(d). The provisions of Article 63(1) being couched in the
alternative, satisfaction of any one of clauses (a) to (e) is sufficient to
declare the election of the returned candidate to be void. The defence provided
by Article 63(2) is not applicable in the facts of the instant case, and hence
I am of the view that the election of the returned candidate is liable to be
declared void. I consciously do not make any declaration that the contesting
candidate be duly elected since I am of the view that Article 64 is not
applicable in the facts of the instant case.

S. S. Halder Vs. Chief Election Commissioner
& Ors 12 BLT (HCD)-82

Article -49

The
Election Tribunal has inherent power to dispose of an Election petition and so
it cannot be stopped from passing any order at any stage of the trial to meet
the ends of justice. In view of the facts and circumstances of the instant case
we do not think that there is any error on the part of the Election Tribunal to
allow the prayer though it was filed when the hearing was on the verge of
conclusion.

Dr. Alauddin Ahmed Vs. Md. Idris Ali Bhuiyan
&Ors. 15 BLT (AD) 04

Article —49 clause-4

As
regard presenting the Election Petition with deposit of Tk. 2000/- is a must it
is mandatory but the mode of depositing the said cost by the petitioner alone
is not mandatory rather it is directory.

G.Q. Chowdhury Vs. A.B.M. Fade Karim
Chowdhury& Ors 13 BLT (AD) 12

Article-91(b)

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.