UNION PARISHAD (ELECTION) RULES, 1983
Rule—38(4)(b)
Recounting
of ballot papers
It
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.
Moreover
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.
Abdul
Mutalib Vs Md. Mostakim Ali and others, 19 BLD (AD) 157.
RuIe—39(4)
Sub-rule
(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
boxes.
Md Mozibur
Rahman Moznu Vs Abdul Halim and others, 21 BLD(AD)109
Part—III
Rule—39(5)
It
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.
In
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.
RuIe—29
Under
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
Officer.
Sajjad Hossain Vs. Abdus Sattar and others, 14
BLD(HCD)595
Ref:
Ayub Au Vs. Election Tribunal, 28 DLR (Ad) 2; Watir Ullah Vs. The State, 1966
PLD (Dhaka) 422—Cited.
Rules—40(1)(4)
and 42
These
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.
In
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.
Non-consideration
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.
Ref:
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.
Rule—42
Custody
of the election materials and documents
Before
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.