Zaker Hossain Vs. Abdur Rahim and Oth­ers

Zaker Hossain (Appellant)

Vs.

Abdur Rahim and Oth­ers (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICE

Badrul Haider Chowdhury J

Shahabuddin Ah­med J

M.H. Rah­man J

A.T.M. Afzal J

Judgment dated : March 19, 1989.

The Constitution of Bangladesh, 1972 (as amended up to date) Art. 102

Election Commission may direct re-poll, or accept the result of a poll though disputed by some candidates. Election Commission’s approval or concurrence is necessary for fresh election if directed by the Returning Officers. Writ jurisdiction is not available in respect of election dispute except in exceptional circumstances such as coram non-judice or malice in law. In this case writ jurisdiction cannot be invoked as alternative remedy is available by way of election petition before the tribunal……………………(3)

Lawyers Involved:

T.H. Khan, Senior Advocate, instructed by Sharif uddin Chaklader, Ad­vocate-on-Record — For the Appellant.

Md. Fazlul Karim, Senior Advocate (Zulmat Ali Khan, Advocate with him), instructed by Nowab Ali, Advocate-on-Record — For Respondent No. 1.

Not represented—Respondent Nos. 2—6.

Appeal No 20 of 1989.

(From the judgment and order dated 13 Decem­ber, 1988 passed by the High Court Division, Dha­ka in Writ Petition No. 602 of 1988).

JUDGEMENT

Shahabuddin Ahmed J. – In this appeal by special leave, the only question for consideration is whether the High Court Division in its Writ juris­diction rightly refused to interfere with an order for re-poll in one of the Polling Stations in connection with the election to the office of Chairman of Nalua Union Parishad, Satkania.

2. Election for the office of Chairman was held on 10 February 1988 in a number of Polling Sta­tions or Centres, but dispute arose in respect of two centres, namely Morfala R.M.N. High School Cen­tre and Uttar Gatia Danga Primary School Centre. The Presiding Officers of these two Centres apparently forwarded the election results but the Returning Officer did not accept the results; instead he directed fresh poll in these two centres with intimation to the Election Commission. This order for fresh election was challenged by the appellant who was one of the contesting candidates in the election, by filing Writ Petition No. 602 of 1988. The writ-petition was contested by another candidate who was respondent No.4 therein taking the ground that the result-sheets submitted by the Presiding-officers were unauthor­ised documents containing interpolations, etc. The learned Judges of the High Court Division, after hearing the parties, made the Rule absolute in re­spect of one Centre and discharged the Rule in re­spect of the other Centre, that is, Uttar Gatia Danga Primary School Centre, by an order dated 13 Decem­ber 1988. By this order the High Court Division up­held the Election Commission’s order for re-poll and also directed that the results of the repoll already held on 10 April 1988 be accepted. This order is now be­fore us for consideration.

3. Mr. T.H. Khan, learned Counsel for the ap­pellant, has tried to make out a case of lack of juris­diction on the part of the Returning-officer to direct fresh poll in a case where the Presiding Officer has submitted the results in appropriate form. We are not impressed by this argument, for, we have already held in a number of similar cases that the Election Commission may direct re-poll, or accept the result of a poll though disputed by some candidates. Mr. T.H. Khan has tried to show that in this case the or­der for re-poll was not made by the Election Com­mission, but by the Returning Officer. It may be kept in mind that Election Commission’s approval or concurrence is necessary for any fresh election if directed by the Returning Officer. But the main ques­tion is whether at an intermediary stage of election Writ-jurisdiction of the High Court Division is at all available, particularly when disputed questions of facts are involved. We have already answered this question in a number of group cases that Writ juris­diction is not available except in exceptional circum­stances, such as coram non-judice or malice in law. In the instant case Writ jurisdiction cannot be in­voked as alternative remedy is available by way of election petition before the Tribunal. In the circum­stances, the appeal is dismissed.

No order as to costs.

Ed.

Source : 42 DLR (AD) (1990) 153

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