of ballot papers

is now well-settled that in an appropriate case the Election Tribunal in the
interest of justice may recount ballot papers for proper resolution of an
election dispute. But in order to make out a case for recounting the person who
challenges the counting has to prove that at the time of counting of votes by
the presiding officer a contesting candidates or his election agent upon
raising specific objection specifically requested the presiding officer to
recount the ballot papers and the same was improperly refused or was not done
in accordance with law.

before opening the election materials, for recounting of ballot papers the
Election Tribunal is to satisfy itself positively that those materials has been
preserved by the proper authority in accordance with law and the same has also
been found intact under proper seal and cover so that no reasonable suspicion
can be raised by the interested candidate of any post election tampering with
ballot papers or other relevant election materials.

Mutalib Vs Md. Mostakim Ali and others, 19 BLD (AD) 157.



(4) of Rule 39 of the Rules requires in mandatory manner that the Presiding
Officer is to count separately the valid votes cast in respect of the Chairman
candidate (s). The Presiding Officer has no other option but to count the votes
at the polling centre unless question of safety and security of the personnel
in charge of holding election at the centre or that safety as well as security
of ballot box or boxes or that of the scrutinized ballot papers is involved.
The word ‘shall’ in the sub- rule has made obligatory counting of votes by the
Presiding Officer after scrutiny of the ballot papers in the ballot box or

Md Mozibur
Rahman Moznu Vs Abdul Halim and others, 21 BLD(AD)109




can hardly be disputed that the facts alleged to invoke the writ jurisdiction
and that to have a writ for the redress of respondent’s grievance are primarily
based on disputed facts those said to have affected result of the election of
the post of Chairman the Union or in other words has made consolidation of
result as per provision 39(5) of the Rules.

the instant case facts alleging which legality of the declaration of election
result has been challenged are undoubtedly a election dispute and that in
Part-Ill of the Rules provision has been made for adjudication of such dispute
by the election tribunal constituted under that part.

Md Mozibur
Rahman Moznu Vs Abdul Halim and others, 21 BLD (AD) 109.



this rule it is the discretion of the Presiding officer to stop the poll and
report it to the Returning Officer if the poll is interrupted or obstructed for
reasons beyond his control. If the Presiding Officer can control the
interruption or obstruction of the poll with the help of law enforcing agencies
or by persuading the candidates and their supporters temporary interruption or
obstruction of the poll cannot invalidate the entire poll. But when the
Presiding Officer stops the poll and reports the matter to the Returning
Officer, in that case the adjourned poll cannot be restarted by the Presiding

Sajjad Hossain Vs. Abdus Sattar and others, 14

Ayub Au Vs. Election Tribunal, 28 DLR (Ad) 2; Watir Ullah Vs. The State, 1966
PLD (Dhaka) 422—Cited.


and 42

Rules provide for proper sealing of the packets containing ballot papers and
also the gunny bags so as to ensure that nothing is removable therefrom without
breaking the seal. The object of these Rules is to secure not only the secrecy
of the ballot but also to eliminate chances of post election tampering of the
election materials.

the instant case it being an undisputed fact that the gunny bags and the ballot
packets along with other election materials remained in custody of the
Returning Officer until 23rd February, 1992 long after receipt of the same from
the Presiding Officers, although under Rule 42 of the said Rules they were to
be sent to the Upazila Nirbahi Officer or the Sub- divisional Officer in properly
sealed condition. The three gunny bags containing ballot papers and other
election materials were found without proper seal on the tied up end of the
gunny bags. The Election Tribunal also found the two packets containing valid
votes of Nidanpur Supatala Government Primary School Polling Station open with
signs of seal missing. Under these conditions it is only natural to presume
that there was tampering with the sealed gunny bags containing ballot papers.
The Election Tribunal erred in law in missing these salient aspects of the case
depending only upon mere counting of ballot papers in the gunny bags under
highly suspicious conditions.

of the important aspects of the case verges on illegality striking at the very
root of the impugned decision and the same has occasioned failure of justice.

Md. Mostakim
All Vs. Abdul Matlib and others, 15 BLD (HCD) 651.

Syed A. Jali Vs. Mahbub Alam and others, 46 DLR (AD) 96(97); Md. Shajahan Vs.
Md. Sadeq and another, 38 DLR (AD) 275(281)—Cited.



of the election materials and documents

recounting ballot papers the Election Tribunal is required to ascertain as to
whether the election materials and connected documents were coming from the
proper custody and these were in proper form and it has to record findings
thereon. In the instant case, the Election Tribunal failed to ascertain the
proper custody of the election materials and documents in their proper form and
as such the impugned judgment was not sustainable in law.

Syed A.
Jalil Vs Mahbub Alam (Babul) and others, 17 BLD (HCD) 27.





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
—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

Laizu Begum and others Vs. Election Commission and others, 10BLD (AD)



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



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

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

—Who an administrative authority decides a matter brought before
it, such authority has to act fairly and justly, and if any person is likely to
he 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’ list
without 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

Md. Sadeq Vs. Md. Shahjahan and anothers, 6BLD (HCD) 305

Ref: 28DLR (AD) 51—Cited.



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

Ref: 28DLR(HCD)375—Cited.


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.



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)

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.

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
—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

Ref: 9BLD(AD)78—Cited.



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)



Publication of election
—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.


Union Parishad Election Rules, 1983

Union Parishad Election Rules, 1983

Order for re-poll by
the Election Commission

results of the election had been announced after due formalities and sent to
the Election Commission for Gazette notification—Held: Under the Election Rules
it is only the Election Tribunal which is competent to decide a post-election
dispute and the Election Commission has no authority to decide such a matter.

Abul Hossain Vs. Md.
Abul Baten & Ors. 7BLT (AD)-315

Wrong Counting of

to the Union Parishad — Election petition filed before the Election Tribunal
for setting aside the election on the ground of wrong counting of votes —
Election Tribunal rejected the election petition. Being aggrieved, opposite
party No. 1 filed an appeal before the learned District Judge—the learned Judge
heard the appeal in part and ordered to bring the ballot papers of all the
election centres of the Telegati Union Parishad the Court to arrive at a
rightful decision—Held: I think the court of appeal below has not committed any
illegality in calling for the ballot papers of the three wards of No. 1
Telegati Union Parishad by exercising the inherent power of the court and I
think that the inherent power of the court is there to arrive at a correct
finding and to do justice to the garties relied on 38 DLR (AD) – 275.

Shorab Hossain Vs.
Khan Ashraf Ali 4BLT (HCD)-102

Election Rules Post
Election Dispute

Election Commission—Post-Election — under the Election Rules it is only the
Election Tribunal which is competent to decide a post election dispute and the
Election Commission has no authority to decide such a matter.

Shamsuddin Ahmed Vs.
Harun-or-Rashid & Ors. 7BLT (AD)-136

Recounting of the
ballot papers.

tribunal—recounting is not to be granted as a matter of course. It is only to
be allowed when the tribunal is satisfied on the basis of evidence before it
that recounting is indispensable necessary for complete and effectual justice.

Abdul Latif Bepari
Vs. Md. Nurul Islam Hawlader & Ors 8BLT (AD)-233.