Rules—2(d), 6(IA), 9(1)(d), 25, 26 and 29 (2)(b)(c)
Election matter—Union Parishad elections for the offices of Chairman and members—Whether piecemeal election for either of the offices is permitted under the Rules— Election for these offices are two different elections—the purpose and processes to be followed for holding the elections are regulated by separate provisions—Whenever a date is fixed for election of a Union Parishad, such election shall be held simultaneously— Counting of votes and declaration of result of either of the two offices is an integral part of election and such election at
any polling station ends as soon as the result is tabulated and declared—The process of Chairman election at Mohanpur Primary School polling station ended as soon as the Prisiding Officer declared the result Of such election but the election for the office of members was not completed as the former failed to count votes of members—candidates—In such circumstances, the Presiding Officer having recommended fresh poll for members only. there appeared no necessity of election for Chairman at that polling station—Moreover, the petitioner himself
having participated in the proceeding of the fresh poll without raising any objection, it is too late ‘for him to question the validity of the notification for such election.
Md. Abdu Mia Vs. The Election Commission and others, 9BLD (HCD)363
Election Petition—Who can make it? Any candidate may make an election petition challenging the election at which he was a candidate—any person whose name has been proposed as a candidate for election as member or Chairman is deemed to be a candidate and as such a candidate may prefer an election petition—Local Government (Union Parishad) Ordinance, 1983 s.26.
Manir Ahmed Khan Vs. Md. Bazlu Mia and others, 8BLD (HCD) 241
“Candidate” and “Contesting Candidate”—Meanings of—Candidate” means a person who has been proposed as a candidate for election as member or Chairman—Contesting Candidate” means a candidate who has been validly nominated for such election and has not withdrawn his candidature—A person whose nomination is rejected under the rules may also be termed a candidate—Local Government (Union Parishad) Ordinance, 1983 s. 26—Union Parishad (Election) Rules, 1983 r.2(i).
Manir Ahmed Khan Vs. Md. Bazia Mia and others, 8 BLD (HCD) 241.
Rules—6 and 29
Change of polling station—Question of 15 days’ time from the date of fixing polling stations to the date of the poll upon change of polling station for Union Parishad election— Whether this time is applicable in a case of adjourned poll and if applicable, whether the requirement is mandatory—The Election rules must be read together so as to arrive at a harmonious interpretation of the rules governing the election as a whole—It is apparent that for change of a polling station, whether in the case of a first election or a re-poll, intervention of a period of 15 days between the date of change and that of the poll js not necessary.
Laizu Begum and others Vs. Election Commission and others, 10BLD (AD) 78
Post-facto approval—Whether such approval for a change in polling station is sustainable in law—The Election Commission first refused approval but later reviewed its decision and accorded approval to the change and the approval came after the election was over—In such circumstances the approval may be safely taken as due approval,
Laizu Begum and others Vs Election Commission and others, 1OBLD (AD) 78
Rules—12(5) and 44(3)
Election rule—Deposit of security— Whether it is incumbent to deposit security under the literal head—The petitioner of the election petition has not mentioned the complete head of account in the manner stated in the rule, but nobody can probably misunderstand that the deposit was not under the head mentioned in the rule—Such an inaccurate statement of head cannot be said to be so vital as to lead to the conclusion that no deposit was made when it was in fact with the Bank as security for the cost of the election petition in favour of the Returning officer.
Md Abdul Kader Vs Md Abdul Rafi and others, 10BLD(HCD)214
Ref: AIR l958(SC) 687: 1959 SCR 583;
1964-3 SCR 573; (1964) 6SCR231; 1969(1) SCC 77; 29DLR22 1—Cited.
Nomination—Question of challenging its acceptance by civil Suit—The Ordinance and the Rules have not provided any forum for challenging the acceptance of the nomination—Once after scrutiny a nomination is accepted it is final and cannot be called in question except by an election petition—Although the word final has not been incorporated in the rule, but as no other forum has been provided for agitating
the matter against acceptance of nomination, it means the decision is final—Local Government (Union Parishad) Ordinance, 1983 s. 26—Union Parishad (Election) Rules, 1983 r.15.
Manir Ahmed Khan Vs. Md. Bazlu Mia and others, 8BLD(HCD)241
Shifting of polling centre without notice—Whether such shifting is illegal and renders the election null and void—Polling centre was shifted by the Retuining Officer without any public notice—Shifting of the polling centre rendered the election null and void and the Tribunal correctly directed re election in the concerned Ward
Fazlul Karim Vs Abu Shama Sawdagar and others, 7BLD(HCD)231
Ref 27DLR 239—Cited
Election dispute Temporary suspension of poll and resumption of the same whether violative of the Election Rules—The learned District Judge came to the conclusion that the disturbance took place outside the enclosure e.g. outside the polling booth and after suspension of poll for 2 or 3 minutes the Premade siding Officer resumed the poll—The evidence shows that the attendance of the poil was fairly good in as much as 83% of the total votes of the ward was cast—Evidence disclosed that the Presiding Officer suspended the poll temporarily but no evidence was ad-duced that he was interrupted or obstructed within the polling station while recording of votes—No case has been made out for at tracting Rule 29 into play.
Haji Md. Ishaque Mia @ ishaque Mia Vs. Haji Sultan Ahmed and another, 7BLD (AD) 179
Rules—29 and 34
Election matter—Question of stopping of poll and holding of fresh poll—Who can do it and when—The authority of stopping poll at any polling station is to be exercised by the Presiding Officer if the poll is interrupted beyond his control—The language of the rule does not invite any other interpretation which may likely to authorise some other authority to stop poll at any polling station—Holding of fresh poll at any polling station presupposes stoppage of poll by the Presiding Officer— The Returning Officer has no authority to question the legality validity of the result of the poil of any polling station submitted by the Presiding Officer.
Md. Ilias Miah Vs. Election Commission and others. 9BLD (HCD)148
Stoppage of election—When
it is permissible—The language of the Rule for reasons beyond the control of the Presiding Officer invests him with some sort of discretion to adjudge the situation whether obstructions are sufficient enough to warrant stoppage of election—The expression means the circumstances which go beyond the control of the Presiding Officer and threaten to destroy the sanctity of the election by violating just, honest and fair election.
Abdul Khaliq Vs. Election Commission and others, 9BLD (HCD) 415
Rules—37 to 39
Administrative Authority—Who an administrative authority decides a matter brought before it, such authority has to act fairly and justly, and if any person is likely tohe affected by such order or decision of such administrative authority, the person to be affected is to be given an opportunity of being heard and there must be materials before such authority and the authority must apply its mind to such materials before passing the 01- der. Otherwise the order will he without jurisdiction and void.
Abdur Rouf Mia Vs. Government of Bangladesh and others, 12BLD (HCD) 10
Ref: 4IDLR (AD) 68: 9BLD (AD) 78; 41DLR (AD)8’7: 9BLD(AD) 103: IOBLD157; 42DLRCD)49—Cited.
Counting of votes outside the polling station in the office of the Returning Officer— Whether it is illegal—The Presiding Officer took a precautionary measure and counted votes in the office of the Returning Officer— The ballot boxes were sealed—No objection was taken as to any corrupt practice or malpractice in counting of votes— Therefore the contention that it was contrary to Rule 38 is not acceptable.
Haji Md. Ishaque Mia @ Ishaque Mia Vs. Haji Sultan Ahmed and another, 7BLD (AD)179
Rules—38 and 40
Election matter—Whether re-election ought to have been held when ballots were not counted on the spot but it was done at a different place —Facts indicate that the Presiding Officer did not consider it safe and secure to count the votes at the centre where election was held—To maintain sanctity of the election and ensure security and safety of the Presiding Officer and others votes were counted at a different place—The action of the Presiding Officer appears to be justified and no illegality has been committed.
Abdul Wasaya Chowdhury Vs. Election Commission and others, 9BLD (HCD)80
Ref: 27DLR 663; 7BLD (AD) 179— Cited.
Rule—39(4) and 39(5)
Union Parishad Election—Recounting of ballots by the Election Tribunal when should be ordered—Election Tribunal’s function—Result obtained on a plain sheet of paper issued by the Presiding Officer cannot be the basis for consideration for deciding a case when the counting of votes by the Presiding Officer is a material issue—Election Tribunal should decided the case by recounting the votes itself.
Abdul Manna and others Vs. Bath-al Alam Chowdhuiy & ors, 6BLD (HCD) 74
Ref: 27DLR 373, 27DLR 662, 27DLR 307, 32DLR(AD) I 86—Cited.
Rules—39 and 52
Corrupt and malpractice—Corrupt and malpractice in election and violation of the provision, of Rule 39 by the Returning Officer—Whether such corrupt and malpractice and violation of the Rule materially affected the election result—The changing of voters’ listwithout any legal authority, the Presiding Officer having illegally set up a separate Polling Centre in Ward No.2 without authority and 865 female votes having been cast there although in the voters list there was no female voter for the said Ward No.2, the said 865 female votes are invalid and liable to be cancelled the returned candidate carried voters by Baby Taxis and Rickshaws and this leads to the irresistible conclusion that the result of the election has been materially affected as the same amounts to corrupt and malpractice vitiating the result of the election.
Nader Au Khan Vs. A.K.M. Ahmedullah Chowdhury, 7BLD (HCD) 246
Ref: I 9DLR (SC) 382, 20DLR633—Cited.
Fresh election—Whether Election Tribunal can direct fresh election without declaring the election of the returned candidate void as a whole—Ordering re-election in a particular centre—The Tribunal may order re-election in a particular polling centre and may not disturb the result of polling in other undisputed centre’s, but in order to do so the Tribunal must declare the election to that particular office void as a whole—Without declaring the election to the office of Chairman void as a whole fresh election cannot be ordered—Union Parishad(Election)Rules, 1983 r.45.
Md. Sadeq Vs. Md. Shahjahan and anothers, 6BLD (HCD) 305
Ref: 28DLR (AD) 51—Cited.
Re-election——Whether re-election can be directed by the Election Tribunal in the interest of justice without finding that the result of
the election was materially affected due to contravention of the Election Rules—Findings of the Tribunal with regard to counting and declaration are shaky, infirm and hesitant—The principles of equity, justice and faij5Iay do not have over riding effect over and above the statutory provisions in election Laws—The Tribunal has to follow the law, not equity—Re-election in one centre cannot be ordered in the interest of justice—Union Parishad (Election) Rules 1983 Rule—45
Md. Sadeq Vs. Md. Shahjahan and anothers, 6BLD (HCD)305
Rules—45, 49 and 70
Result of election—Authority to set it aside—Only the Election Tribunal and no other authority has been vested with the power of setting aside the result of the election, either in part or as a whole, prepared either by the Returning Officer or the Presiding Officer—If it is construed that the Election Commission has also been empowered to nullify the election result .of any polling station already declared by its Presiding Officer and accepted by the Returning Officer, that will lead to an anomalous position of bringing such authority of Election Commission into direct conflict with the provisions of the Ordinance and the Rules—The local Government (Union Párishads) Ordinance (LI of 1983) Ss.26 & 27.
Md. Ilias Miah Vs. Election Commission and others, 9BLD (HCD) 148
Rules—47 and 48
Election Tribunal—Extent of its jurisdiction—Whether it is competent to pass orders of temporary injunction—Election Tribunal would have the powers of a civil Court trying a suit under the Code of Civil Procedure only for decision of the matter before it and not beyond—It is not a civil Court under the Civil Courts Act, 1887 and it is not a part of the judicial system of the country—The Tribunal was created for a limited purpose by a special law and it is under the superintendence of the executive authority—The power of transfer of an election petition is with the Election Commission not with the District Judge, the appellate authority, which indicates that the Election Tribunals are not amenable to provisions of the Code of Civil Procedure—The Appellate Tribunal also could not be considered a civil Court only because the appellate authority of the Tribunal has been found to be a civil Court—True, there is incongruity is it, the appellate authority has one character and the Tribunal has a different character—It is for the legislature to bring about a uniformity between the superstructure and the infrastructure of an institution—Since the Election Tribunals are not civil Courts, they also are not amenable to the revisional jurisdiction of the High Court Division—Local Government (Union Parishads) Ordinance, 1983 S. 29—Code of
Civil Procedure (V of 1908) Ss. 94,115 Or. 39 rI.
Mohmud Hussain Vs. Md. Sayeb Au and others, 9BLD(HCD)173
Ref: 27 DLR 388; 28 DLR 189; 29 DLR Ill; 38 DLR(AD) 172; 37 DLR 71; 38 DLR 41.,38DLR262;38DLR435;31 DLR 119— Cited.
Election appeal-dismissal for default— Whether the District Judge has jurisdiction to entertain application for re-admission Of an election appeal dismissed for default—The distinction between the status of an Election Tribunal and the appellate forum is obvious— The Election Tribunal des not function as a part of the judicial system of the country but the District Judge does function as part of the judicial system—Inspite of the incongruity of a revisional application being available to a party against the substantive decision of the District Judge and there being a provision for appeal in the case of rejection of an application for re-admission of appeal, the District Judge will continue to
exercise all powers which as an appellate Court has been vested in him under C.P.C.—Code of Civil Procedure (V of 1908) Or.41 r. 19—Local Parishad (Election)Rules, 1983 r. 48.
Moktad Hossain Majumder Vs. Abut Bashar Majumder & ors. 6BLD (AD) 102
Ref: 3ODLR33I; 3IDLRI19: 29DLR(SC) 295—Cited.
Election matter—Extent of jurisdiction of the Election Commission—The Election Commission has not only supervisory jurisdiction in the entire matter to oversee that the election is conducted honestly and fairly, it can also exercise such power including the power to review orders passed by a officer and make consequential orders for ensuring a fair election—It is eminently within the jurisdiction of the Election Commission to order re–poll upon review of the circumstances of a given case—Election is needed to sustain democracy, a perverse election or voter less election destroys democracy and as such the power of review given to the Election Commission is of necessity an important one for holding elections justly—The real issue is completion of free and fair election with rigorous promptitude—All election disputes must wait pending completion of the election and be taken for examination by the appointed instrumentality, viz, the Election Tribunal— Local Government (Union Parishads) Ordinance (LI of 1983) S. 29.
A.F.M. Shah Alam Vs. Mujibul !Iuq and others, 9BLD(AD) 78
Ref: AIR I 952(SC)64; I 5DLR(SC)283; 19 DLR (SC) 516; AIR 1978(SC)85l; 18 DLR (SC) 426—Cited.
Election matter—Writ Court not to enter into controversy relating to such matter—In an election dispute the issue is to be raised and evidence adduced for adjudication by a competent Tribunal—This function has been given to the Election Tribunal and to none else—By taking resort to extra—ordinary jurisdiction for a writ in such a matter the High Court Division will be asked to enter into a territory which is
beset with disputed facts and certainly by well—settled principles it is clear that a writ Court will not enter into such controversy—The writ jurisdiction, cannot be invoked except on the very limited ground of total absence of jurisdiction or malice in law to challenge any step in the process of election including an order passed by the Election Commission—The larger issue of completion of fair election with rigorous promptitude for timely emergence and functioning of elective bodies must take precedence over settlement of private disputes—Constitution of Bangladesh, 1972 Art. 102—Local Government (Union Parishads) Ordinance (LI of 1983) S. 29.
A.F.M. Shah Alam Vs. Mujibul Huq and others, 9BLD (AD) 78
Ref: AIR l952 (SC) 64; 15DLR (SC)283; 19 DLR (SC) 516; AIR 1978(SC)851; 18 DLR (SC) 426—Cited.
Order of re-poll-Election—Commission’s competence to pass the order—The Election Commission has ample power to direct a re-poll in case where the election process was disrupted—In the facts of the case High Court Division misdirected itself in venturing on an enquiry into the sufficiency or otherwise of the reasons that impelled the Commission to pass the impugned order— This is not a case of no evidence.
Abdul Kalam Vs. Abdul Kalam and others, 9BLD(AD)166
Audi alterem partem—Desi rabi I ity of observance of the principle in a proceeding before the Election Commission—The impugned order shows that before its passing the Commission took into account the report of the District Election Officer, reports and applications of various parties—The Court will not look into the sufhciency of materials before the Election Commission—It shall only see whether the Commission acted within jurisdiction— In the facts and circumstances of the case, the Commission acted fully within its jurisdiction and the rule of audi
alterem partem is not applicable.
B.D. Habibullah Vs. Election Commission and others, 9BLD (HCD) 496
Order for fresh election—Power of Election Commission to pass order without notice to the parties—The relevent rule authorising the Election Commission to pass such orders is remedial in nature and is designed to meet pecuiliar circumstances for the ends of justice—The Rule does not require that the contesting parties should be heard or any notice is to be served upon them before passing any order under the Rule.
Taherul Islam Chowdhury Vs. Election Commission and others, 9BLD (HCD) 499
Publication of election result—Publication of the names of returned candidates of Union Parishad in the official gazette— Whether the Election Commission is entitled to interfere with the result after the gazette notification—The Rule under which interference was made does not have any expression enabling the Election Commission to interfere when the result is actually published in the official gazette—Once a notification is published the aggrieved candidates acquire a legal right to submit an election petition and the period of limitation is counted from the date of publication of the gazette notification—The nature of the notification is such that if it is allowed to he interfered with then it breaks a chain of rights and plays havoc with the scheme propounded by the legislature in disposing of post-election matters—Local Government (Union Parishads) Ordinance(LI of 1983) s.26.
Hazrat Ali Vs. Election Commission and others, 10BLD (HCD) 157.