Afzal Khan Vs. Election Tribunal, Comilla and other, 32 DLR (AD) (1980) 186

Case No: Civil Appeal No. 88 of 1979

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,,

Citation: 32 DLR (AD) (1980) 186

Case Year: 1980

Appellant: Afzal Khan

Respondent: Election Tribunal, Comilla

Subject: Election Matter,

Delivery Date: 1979-10-11

Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, CJ.
Ruhul Islam, J.
KM. Subhan, J.
Badrul Haider Chow­dhury, J.
 
Afzal Khan
…………………..Appellant
Vs.
Election Tribunal and Munsif. 3rd Court, Comilla and other
……………..........Respondents
 
Judgment
December 11, 1979
 
Local Government Election (Paurashova)
Counting of votes
The Election Tribunal cannot count the ballot papers, unless the recounting became a necessary part of the case itself which has been brought on the basis of certain allegations of corrupt and illegal practices. ..…………(13)
Only the Tribunal has got power to reopen the ballot boxes and recount the ballot papers provided sufficient foundation has been laid to come to the fin­ding that the recounting is indispensably nec­essary for adjudication of the election petition. ..…………(13)
The High Court Division there­fore had acted correctly in the exercise of its jurisdiction for ends for justice in counting and rechecking of the ballot papers the process of which was started by the Election Tribunal itself solely for the purpose of doing complete justice in the matter...…………(13)
 
Lawyers Involved:
Khondker Mahbubuddin Ahmed, Advocate with Serajul Huq, Advocate, instructed by Md. Shafiqur Rahman, Advocate-on Record-For the Appellant.
Syed Ishtiaq Ahmed, Senior Advocate with Zamiruddin Ahmed, K Z Alam, Advocate, instructed by Syed Sakhawat Ali, Advocate-on Record—For the Respondent No. 2.
 
Civil Appeal No. 88 of 1979
(From the judgment and order dated 2nd February, 1979 passed by the High Court Division m Writ Petition No. 847 of 1978.)
 
JUDGMENT
 
Badrul Haider Chowdhury, J.
 
1. This appeal by special leave arises out of the Judgment and Order passed by a Division Bench of the High Court Division in Writ Petition No. 847 of 1978.
 
2. Respondent 2, Abdul Jalil filed the above writ petition stating that he and the appellant, Afzal Khan along with to others were the contesting candidates in the election of Chair­man of Comilla Pourashava held on 13.8. 1977. The election was held peacefully in 32 polling centres and the Respondent 2, Abdul Jalil was declared elected by the Returning Officer defeating his nearest rival Afzal Khan by a merging of 61 votes.
 
3. The defeated candidate Afzal Khan filed election petition making number of allegations of corrupt and illegal practices in holding the election including improper and perfunctory counting of votes. His grievance was that at the 18 polling station mentioned in the petition the counting of votes was done '«most hurriedly improperly and per­functorily" and in some polling stations he alleged that "known supporters of Respon­dent No. 2 were allowed to handle the ballot papers and due to this, many valid votes of the appellant were illegally invalidated and good number of votes were counted- in favour of Respondent 2." Abdul Jalil in the writ petition denied the material objections and stated that at the time of counting of all votes, no objection was taken by anybody regarding the counting of votes.
 
4. The Election Tribunal thereafter con­sidered an application which was filed on 31.7.78 for amendment of the election petition giving up his entire allegation regarding corrupt and illegal practices in holding the election and pressed the prayer for recounting of the ballot papers of the 18 polling centres. This amendment was allowed in spite of the objec­tion of Respondent 2, Abdul Jalil, who filed the petition stating that if the prayer for recounting was allowed then recounting sho­uld be held for all the 32 polling centres. His petition was, however, rejected by the Tribu­nal.
 
5. The Election Tribunal after hearing the parties and considering the evidence recounted the ballot papers of the 18 polling centres and found that Afzal Khan had a lead of 153 votes over Abdul Jalil? Accordingly, it declared Afzal Khan elected.
 
6. Thereafter Abdul Jalil filed the writ petition under Article 102 of the Constitu­tion. The High Court Division after hearing the parties decided to recheck the ballot papers of the 18 polling centres which were rejected by the Election Tribunal as invalid. In this process it was found that the Respondent 2 had still margin of 66 votes. The High Court Division, however, considered the prayer of Abdul Jalil for checking the ballot papers in respect of the 14 polling centres which, however, was objected to by the appellant, Afzal Khan. The High Court Division however, checked the valid ballot papers of these 14 polling centres. Finally this process recou­nting showed that the Respondent 2, Abdul Jalil, had a lead of 20 votes and accordingly it declared him elected as Chairman after setting aside the decision of the Election Tri­bunal.
 
7. Leave was granted on the ground that the High Court Division had acted illegally in recounting the ballot papers of 14 polling centres and further in counting 35 ballot papers which did not bear any official mark in contravention of the Pourashava Ordina­nce, 1977.
 
8. Khondker Mahbubuddin Ahmed, the learned Counsel appearing for the appellant contended that the High Court Division had adopted a double standard in rechecking the ballot papers which was rejected by the Tribu­nal in respect of the 18 polling centres, whereas in the case of remaining 14 polling centres over which there was no dispute the High, Court Division had erroneously chec­ked only valid ballot papers. The learned Counsel forcefully argued that the rechecking of 14 polling centres by the High Court Division was illegal and without juridiction.
 
9. Syed Ishtiaq Ahmed, the learned Counsel appearing for the Respondent 2, argued that no case had been made out before the Election Tribunal for recounting of the ballot papers and the Tribunal itself was not justified in recounting. It was argued further that if the Tribunal had decided on recounting, then it should have recounted the ballot papers of all the 32 polling centres which, in fact, was prayed for by the Respondent Mr. Ahmed canvassed that sufficient foundation was not" laid for the exercise of the jurisdiction of Tribunal for recounting. The High Court Division, it was contended, had rightly che­cked the ballot papers of the 14 polling centres since the whole case of the appellant was for counting of ballot papers, submit­ted that the High Court Division had adopted a correct course in checking the ballot papers of the 14 polling stations and this and this cannot be termed as adopting double" standard.
 
10. As has been noticed, Abdul Jalil, Res­pondent No. 2 was declared, elected by the Presiding Officer by a margin of 61 votes. Rule, 37(4) of the Pourashava Election Rules, 1977 provides for counting. As has been noticed no objection was taken either before the Presiding Officer or to the Return­ing Officer that the ballot papers were counted improperly and illegally or hurriedly. Nothing was said about the counting by any body. It is only when the election pe­tition was filed that a general allegation was made about 18 specified polling centres stating that in these centres counting was done hurriedly and improperly" and in some centres the Polling Agents of the rival can­didate "were allowed to handle the ballot boxes." This allegation was not brought either before the Presiding Officer or to the notice of the Returning Officer. Not only this, when the election petition was about to tried, then the allegation for corrupt and illegal practices were given up and simply a case of counting was put before the Tribunal.
 
11. Normally mere counting of votes may not a sole issue before any Election Tribunal unless sufficient foundation for such exercise is laid by evidence. In the present case no allegation was made before the Ret­urning Officer specifically regarding the error in counting but this was raised before the Tribunal along with the allegation of corrupt practice.
 
12. The case of Afzal Khan was based on corrupt or illegal practices and as a com­ponent part of it he prayed for recounting in 18 polling centres. This prayer, as has been noticed, was objected to by the Respondent 2 who prayed for recounting of all the stations. That was not done by the Tribunal. The High Court Division did it but in doing so the High Court Division only re-checked the ballot papers which have been taken as valid in the 14 polling centres. It must be said that the High Court Division took sufficient precau­tion while deciding the Writ matter in the exercise of jurisdiction whether the High Court Division should recount the ballot pa­pers of the 14 polling centres but it conside­red that in the "interest of justice" these ballot papers should be rechecked keeping in the mind "though such a course should be avoided as far as possible." The High Court Division was careful that the prayer of a de­feated candidate "for recounting of ballot papers should be rejected if he had not requ­ested the Presiding Officer for recounting on the spot,' It noticed that in the case of the 18 polling centres the Election Tribunal had recounted the ballot papers and the High Court Division had verified "whether rejection by the Tribunal of some votes got basis where­as in the later (14 centres) in which the Tri­bunal did not do the recounting we did it and completed thereby process of the recounting started by the Tribunal". The High Court Division observed:
 
"This petitioner filed on the eleventh hour containing the allegation of double yardstick has got no substance and is rejected."
 
The High Court Division had rightly noticed the principles namely, (a) that the counting was not asked for before the Presiding Officer, (b) foundation for the exercise of jurisdiction of the Tribunal merely for reco­unting was not laid, (c) when the Tribunal had counted only 18 polling centres the pr­ocess of counting could not be completed unl­ess the other 14 centres are checked. The High Court Division had correctly judged that this was necessary to complete the pro­cess of counting which was started by the Tribunal and, therefore, it cannot be assailed as having a double standard. We fully subscribe to this view and no exception can be taken to this part of the High Court Division's judgment.
 
13. As for the 35 ballot papers, the High Court Division noticed correctly that these ballot papers which do not bear official mark should be rejected under rule 37 (3) (b) of the Pourashava Election Rules, 1977. It ac­cordingly checked the ballot papers which were not done by the Tribunal itself correctly, so the High Court Division rechecked the ballot papers of the candidates and excluded them from the counting which did not bear official mark. The contention that the High Court Division in a Writ jurisdiction should not count the ballot papers because it is not convenient for such jurisdiction to do the recounting has some force but on exception can be taken to this endeavour of the High Court Division of counting ballot pa­pers as it was done in the interest of justice and fairplay. The jurisdiction of counting eminently lies elsewhere and even the Election Tribunal cannot count the ballot papers, unless the recounting became a necessary part of the case itself which has been brought on the basis of certain allegations of corrupt and illegal practices. It is well settled that if recounting of ballot papers is a material issue before the Tribunal in connection with an election which cannot be determined wi­thout such recounting, then only the Tribunal has got power to reopen the ballot boxes and recounting the ballot papers provided sufficient foundation has been laid to come to the fin­ding that the recounting is indispensably nec­essary for adjudication of the election petition. This was not the position before the Election Tribunal. The High Court Division there­fore had acted correctly in the exercise of its jurisdiction of ends for justice in counting and rechecking of the ballot papers the process of which was started by the Election Tribunal itself. No exception can be taken to the pro­cedure adopted by the High Court Division in as much as the High Court Division is itself aware of the limitations of its jurisdiction in taking such steps which is done, however, solely for the purpose of doing complete justice in the matter.
 
In the result, therefore, this appeal is dismissed without any order as to costs.
 
Ed.