Zaker Hossain (Appellant)
Abdur Rahim and Others (Respondents)
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)
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).
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.
Source : 42 DLR (AD) (1990) 153