Case No: Civil Appeal No. 35 of 1992
Judge: Shahabuddin Ahmed ,
Court: Appellate Division ,,
Advocate: Dr. Kamal Hossain,Mr. Abdul Wadud Bhuiyan,Dr. Rafiqur Rahman,,
Citation: 45 DLR (AD) (1993) 53
Case Year: 1993
Appellant: Altaf Hussain
Respondent: Abul Kashem and others
Subject: Constitutional Law, Election Matter,
Delivery Date: 1992-12-3
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
…………Appellants [In CA No. 35 of 1992]
Abul Kashem and others
…………Respondents [In CA No. 35 of 1992]
.................... Appellants [In CA No. 43 of 1992]
Jalaluddin and others
............ Respondents [In CA No. 43 of 1992]
………………Appellants [In CA Nos. 53 to 57 of 1992]
Tofel Ahmed and others
.......... Respondents [In CA No. 53 of 1992]
………………. Appellants [In CA Nos. 53 to 57 of 1992]
Rafiqul Islam and others
.......... Respondents [In CA No. 54 of 1992]
………………. Appellants [In CA Nos. 53 to 57 of 1992]
Abul Kashem Molla and others
.................. Respondents [In CA No. 55 of 1992]
………………. Appellants [In CA Nos. 53 to 57 of 1992]
Akbar Ali and other
.............. Respondents [In CA No. 56 of 1992]
………………. Appellants [In CA Nos. 53 to 57 of 1992]
Jalaluddin and others
......................... Respondents [In CA No. 57 of 1992]
……………… Appellants [In CA No. 58 of 1992]
Rafiqul Islam and others
….................... Respondents [In CA No. 58 of 1992]
....................... Appellants [In CA 59 of 1992]
Tofel Ahmed and others
....................... Respondents [In CA No. 59 of 1992]
Abdur Rashid Sharif
....................... Appellants [In CA No 64 of 1992]
Ali Akbar Majhi and others
…………....... Respondents [In CA No. 64 of 1992]
December 3rd, 1992.
Constitution of Bangladesh, 1972
Election Commission’s inherent power under the provision of ‘superintendence, control and direction’ should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair election.
Cases Referred to-
AFM Shah Alam Vs. Mujibul Huq and others 41 DLR (AD) 68; Abdur Rab Mia Vs. Fazlur Rahman 43 DLR (AD) 23 & AC Jose Vs. Sivan Pillai AIR 1984 SC 921.
Dr. Kamal Hossain, Senior Advocate, instructed by Mvi. Wahidullah, Advocale-on-Record- For the Appellant (In Civil Appeal No. 35 of 92).
Tareque, Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Appellant (In Civil Appeal No. 43 of 92).
AW Bhuiyan, Additional Attorney General, (B Hossain, Deputy Attorney-General, with him), instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Appellant (In Civil Appeal Nos. 53 to 57 of 92).
MA Wahab Miah, Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Appellant (In Civil Appeal No. 58 of 92).
Habibul Islam Bhuiyan, Senior Advocate, instructed by Mr. Md. Sajjadul Huq, Advocate-on-Record-For the Appellant (In Civil Appeal No. 59 of 92).
Dr. Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocateon-Record-For the Appellants (In Civil Appeal 64 of 1992).
Khondkar Mahbub Hossain, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record-For the Respondent No.1 (In Civil Appeals 35 and 43 of 1992).
Not represented‑Respondent Nos. 2-9 (In Civil Appeals 35 and 43 of 1992).
Amirul Islam, Senior Advocate, (Md. Nurul Islam Chowdhury, Advocate, with him) instructed by Md. Aftab Hussain, Advocate-on-Record-For Respondent No. 1 (In Civil Appeals 53 and 59 of 1992).
Not represented- Respondent Nos. 2-7 (In Civil Appeal Nos. 53 and 59 of 1992).
Mahbubey Alam, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record -For Respondent No. 1 (In Civil Appeal Nos. 54 and 58 of 1992).
Not represented-Respondent Nos. 2-8 (In Civil Appeal Nos. 54 and 58 of 1992).
Not represented-Respondents (In Civil Appeal No. 55 of 1992).
Miftahuddin Chowdhury, Advocate (appeared with leave of the court) instructed by Md. Nawab Ali, Advocate-on-Record-For the Respondent No. 1 (In Civil Appeal No. 56 of 1992).
Not represented-Respondent Nos. 2‑9: (In Civil Appeal No. 56 of 1992).
Not represented- Respondents (In Civil Appeal No. 57 of 1992).
Abdul Quayum, Advocate (appeared with leave of the Court), instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondent No. 1 (In Civil Appeal No. 64 of 1992).
Not represented-Respondent Nos. 5-9 (In Civil Appeal No. 64 of 1992).
Civil Appeal Nos. 35, 43, 53, 54, 55, 56, 57, 58, 59 and 64 of 1992
(From the judgment and order dated 6.7.92, 9.7.92, 8.7.92, 9.7.92 and 30.6.92 passed by the High Court Division in Writ Petition Nos. 1134, 1328, 938, 1024, 1280, 902 of 1992).
Shahabuddin Ahmed, J.
1. In all these appeals by special leave, a common question of law being involved, they have been heard together and are going to be disposed of by this judgment. In each of these appeals a dispute as to the result of election for the office of chairman of six Union Parishads has been raised. On conclusion of election, counting of votes by the Presiding Officers was completed and declaration of result by the Returning Officers was made and notification of the result in official Gazette was left to be published by the Election Commission. But the latter cancelled the result of election in one or more polling stations out of several polling stations in each Union, and directed repoll. The affected candidates challenged the orders of the Election Commission in six separate writ petitions taking the ground that when election was held peacefully and no disturbance resulting in the stoppage of poll and requiring fresh poll was reported by the concerned authorities, the Election Commission had no jurisdiction to interfere in the matter. This contention has been accepted by the High Court Division which declared invalid the orders for repoll. Leave has been granted to consider and examine the extent of the Election Commission's power to direct fresh poll within the framework of its general power of "direction, control and superintendence" over all matters relating to election for Union Parishads.
2. Elections of Union Parishads are held by the Election Commission under the Local Government (Union Parishads) Ordinance, 1983 and the rules framed thereunder, called Union Parishads Election Rules 1983. The Election Commission is a body constituted under Article 118 of the Constitution of Bangladesh. Article 119(1) of the Constitution describes the functions of the Election Commission relating to election to the office of the President and Members of Parliament. Article 119(2) gives the Election Commission power "to perform such other function as may be prescribed by this Constitution or by any other law". Article 119(2) thus indicates the source of authority, power and jurisdiction of the Election Commission in respect of elections other than that of the President and Members of Parliament. "Any other law", in the case of election for Union Parishads, is the Local Government (Union Parishads) Ordinance 1983 and the Rules framed thereunder, namely, Union Parishads Election Rules, 1983. Section 24 of the Ordinance as referred to above provides:
"Election of Chairman shall be organised, held and conducted by the Election Commission in accordance with rules", and such rules may provide for a number of matters one being circumstances under which poll may be suspended and fresh poll may be held".
Rule 29 of the Union Parishad Election Rules provides as follows:
"If at any time, the poll at the polling station is interrupted or obstructed for reasons beyond the control of the Presiding Officer, he shall stop the poll and inform the Returning Officer that he has done so".
The Returning Officer, on receipt of such a report from the Presiding Officer, shall immediately report the matter to the Election Commission and then appoint, as soon as possible, and with the approval of the Election Commission, a day for a fresh poll.
3. In none of the instant cases the Presiding Officer sent any report about disturbances or stoppage of poll, nor any person or candidate complained to the Presiding Officers about any disturbance. The Presiding Officers counted the ballot papers during which time no grievance was made about the counting. Similarly, no allegation was also made to the Returning Officers about any of the elections. But allegations were made after the declaration of results. The Election Commission then either enquired the matter itself, or got it enquired by some other officers, such as, Deputy Commissioner, Nirbahi Officer or District Election Officer and cancelled the election in some of the Centres and directed repoll there. The question is from where the Election Commission got power to interfere at this stage and direct repoll.
4. Mr. Abdul Wadud Bhuiyan, learned Additional Attorney-General has appeared for the appellants in five of these appeals. His contention is that the general power of organising, holding and conducting an election as provided in section 24 of the Ordinance, read with Article 119(2) of the Constitution, contemplates the power of the Election Commission to oversee the entire election process from start to finish and to ensure that such election is held justly, fairly and honestly. His view has been supported by Dr. Kamal Hossain and Dr. Rafiqur Rahman and other learned Advocates who have appeared for the appellants. Dr. Kamal Hossain has, however, added a "rider" to his submission saying that the power of superintendence, control and organisation, is not absolute and that it cannot be exercised arbitrarily, overriding the rules and procedure specifically prescribed in the law and that facts of each case will determine the extent of the Election Commission’s inherent power as sought to be invoked by the learned Additional Attorney-General. Mr. Islam, learned Counsel appearing for the respondents in CA 53 and 59 of 1992, has taken a different view. He has contended that the Election Commission is bound by the election laws and rules, that these rules cannot be disregarded but must be followed by the Election Commission and that when specific provision has been made under rule 29 for repoll at the initiative of the Presiding Officer, this rule cannot be ignored and when there is no report about any disturbance during the poll or when there is no complaint about the counting of votes on the spot, the Election Commission got no jurisdiction to interfere at the instance of a defeated candidate, who comes down with allegation of all sorts after seeing the result of the election, that is, after declaration of the result made by the Returning Officer strictly in accordance with law. If the Election Commission interferes disregarding the rules the function of the Presiding Officer and the Returning Officer will be thwarted, the learned Counsel has added.
5. The question before us is not a new one. On several occasions in the past this question was raised and this Court after considering all aspects of the matter gave clear decisions. Reference has been made to A F M Shah Alan: Vs. Mujibul Huq and others, 41 DLR (AD) 68 and Abdur Rab Mia Vs. Fazlur Rahman, 43 DLR (AD) 23. In the first mentioned case this Court also referred to some decisions of the Indian Supreme Court as to the Election Commission's power for directing repoll in elections held to Parliament and State Legislatures and observed:
"The Election Commission has been given the power from start to finish to oversee that that elections are organised, held and conducted in accordance with law………………….that over‑all responsibility for holding of fair election is that of the Election Commission itself ………….. to deny such power is to encourage the muscle power that has been demonstrated in the writ petitions, when in e morning one declaration was made by the Presiding Officer and another declaration was made by him in the afternoon and………….that the Election Commission's interference for directing repoll may be challenged on conclusion of election by an election petition before the appropriate Tribunal".
6. This decision was given when a new provision for review under rule 70 was brought into the Union Parishad Election Rules, 1983. Rule 70 provided for the Election Commission's power to review any order passed by any Officer in connection with elections and to make any consequential order for the purpose of ensuring a free, fair and just election. That power, it may be mentioned, was given with the provision "Save as otherwise provided". It means in addition to the provisions laid down in the law and rules, the power of review was to be exercised and consequential order was to be made. Rule 70 was, however, deleted by a subsequent amendment and consequently the Election Commission was left with powers only under section 24 of the Ordinance which gives the power to organise, hold and conduct an election. In the judgment of the case reported in 41 DLR (AD) 68 it was indicated that inherent and plenary power of the Election Commission would not be affected by repeal of rule 70. Subsequent decision of this Court in 43 DLR (AD) 23 was given when rule 70 was not in the statute book. The case in 43 DLR (AD) 23 related to the election of Chairman of a Upazila Parishad. The Upazila Parishad Election Rules were similar in terms to the Union Parishad Election Rules. Rule 68 of the Upazila Parishad Election Rules was corresponding to Rule 70 of the Union Parishad Election Rules: after repeal of Rule 68 the question arose in that case as to the extent of the Election Commission's power to direct repoll in the absence of rule 68. The Court after reviewing the previous decision found that the Election Commission's over‑all power to direct repoll in appropriate cases was not diminished or curtailed. It was observed:
"There can hardly be any dispute that the Election Commission got statutory power to organise, conduct and hold election which must be fair and free and to direct fresh poll in appropriate cases. This power is to be exercised subject to the election rules".
In that case election was hold in 83 centres peacefully. Counting of votes also took place peacefully in presence of the candidates one of whom was declared elected but thereafter an allegation was made and fresh poll was prayed for in all the Centres. The Election Commission accepted the allegation in respect of four Centres and directed repoll there; but the High Court on a writ petition filed by the elected candidate found that the Election Commission unnecessarily and without any basis interfered in the matter. In the circumstances this Court observed:
"There was no complaint whatever before the Presiding Officers as to any unfair practice adopted by any party, nor was any petition made to the Presiding Officers for recounting of ballot paper on the spot, and consequently, the Presiding Officers, in usual course, recorded the result of counting of ballot papers in the appropriate form and forwarded the same in sealed bags to the Returning Officer. Duty of the Returning Officer, unless he got report or information as to disruption of the election or large scale rigging in any centre, is just to consolidate the results received from the Presiding Officers and declare elected the candidate who has received the highest number of votes. The next course for him is to send the name of the elected person to the Election Commission for notifying the election in the official Gazette. If these duties are performed in due and normal course there is no scope for the Election Commission to intervene. After the notification any dispute regarding the election is to be brought to the Tribunal for determination".
7. But it was also indicated in that decision by this Court that on many occasions untoward things may happen, such as, capturing the polling booth by musclemen, driving away the Presiding Officers or the agents of the rival candidates and then stuffing the ballot boxes with ballot papers and then obtaining a favourable result from the Presiding Officer either by coercion or by purchasing his honesty. In such cases, the Election Commission has got power to direct fresh poll. It was also observed that though election in a centre was held peacefully, the Presiding Officer might be influenced by an interested candidate to make false report as to the counting of votes, which appears on the face of the record, in which case the Election Commission's interference might be justified.
8. In an Indian case………….. A C Jose Vs. Sivan Pillai, AIR 1984 SC 921……..election was held peacefully to a seat of Kerala State Legislature. After declaration of the result by the Returning Officer, an allegation was made that in some of the polling stations votes were counted through ballot machines which were suddenly introduced by the Election Commission. It was contended by the petitioner, a defeated candidate, that counting of votes by a machine is not permitted by the Election Rules which provide for only one mode of counting of votes which is the manual process. Introduction of the mechanical system was sought to be defended under the Election Commission's general and plenary power of superintendence and direction as provided in Art. 342 of the Constitution. This defence was rejected by the Supreme Court which held that when there are statutory rules as to the mode of counting votes, the Election Commission must follow them and that in the absence of any such rules or where rules or statutes are silent on any matter, then only the Election Commission has got power to take proper steps and further that the general power of "superintendence, control and direction" is meant to supplement and not to supplant any statute and rule.
9. In our legal system relating to elections also the Election Commission's inherent power under the provision of 'superintendence, control and direction' should be construed to mean the power to supplement the statutory rules with the sole purpose of ensuring free and fair elections. This power is to be exercised with utmost restraint, for frequent use of it is likely to render the other statutory functionaries ineffective. It is rather difficult to draw a line of demarcation of the field where this power should be exercised and where should not. But from the experience it is found that sometimes statutory functionaries on the spot do not make timely report as to any disturbance during poll or large‑scale rigging at the time of counting of ballot papers either through coercion or from dishonest motive. So, the general rule that when election has been held peacefully and no report has ken made about any disturbance or rigging by the Presiding Officer or the Returning Officer, then the Election Commission has no power to interfere, cannot be taken for universal application. If, for instance, the total number of votes cast in a Centre exceeds either total number of ballot papers issued to the Centre by the Election Commission or the total number of voters enrolled for that Centre, then the latter may interfere even if everything is reported to have been done peacefully. Similarly, if during the counting of ballot papers a ballot box is found missing or it is snatched away or if the Presiding Officer makes glaringly contradictory reports as to the result of the counting of votes, without reasonable explanation, then the Election Commission need not wait for determination of the dispute by the Election Tribunal. But where no such thing has happened but allegation is brought after the declaration of the result then it is always desirable that dispute, if any, should go to the Tribunal for determination. In the line of these observations, I shall now consider the facts of the appeals individually.
Civil Appeal No. 64 of 1992
10. This arises from Writ Petition No. 902 of 1992. This appears to be the earliest of the cases before us and the decision in this writ petition has been cited by the same Division Bench of the High Court Division in the subsequent cases including all these appeals before us. In this case, election for the office of Chairman of Laukati Union Parishad (Patuakhali) was held on 25 January 1992 in four centres. The Presiding Officers counted ballot papers on the spot in presence of the candidates or their agents and reported the results to the Returning Officer on the following day; the Returning Officer consolidated the results and declared respondent No. I duly elected. For notification of the name of the elected candidate in the Gazette, it was sent to the Election Commission on the following day‑27 January 1992, but the Election Commission by an order dated 29 February 1992 informed the District Election Officer that the result of one Centre (Sree Rampur Primary School Centre) was cancelled and that fresh poll would be held there soon. This order was challenged in the writ petition. A defeated candidate, who opposed the writ petition tried to make out a case that there was violent disturbance during the poll and in spite of it the polling officer did not report the matter to the higher authorities. But the High Court Division found no basis for such allegation as to disturbance, nor did it find any contemporaneous allegation made to any authority. The High Court Division found that in that Centre 4427 votes were cast out of which 4281 votes wore in favour of the candidate who was duly declared elected. The Election Commission, on receipt of the allegation after the declaration was made, got the matter enquired by the Deputy Commissioner. The enquiry was however held by the Nirbahi Officer; on the basis of this report and also in view of the fact that a high number votes in that Centre was cast in favour of only one candidate, the Election Commission cancelled it and directed repoll. The learned Judges referred to two decisions of this Court reported in 41 and 43 DLR and found that there was no material before the Election Commission to interfere when there was no allegation whatever by anybody to the concerned authority at the relevant Lime. We have heard Dr. Rafiqur Rahman, teamed Counsel for the petitioner. Except pointing out the high percentage of votes cast in favour of only one candidate in the disputed Centre, he failed to make out a case for the Election Commission's interference. The High Court Division's order on the writ petition declaring the Election Commission's action illegal is found to be justified. However, the candidate who is aggrieved is at liberty to challenge the election of the candidate, declared elected, before the Election Tribunal.
Civil Appeal No. 56 of 1992
11. This has arisen from Writ Petition No. 1280 of 1992 and it relates to the election of Aftab Nagar Union Parishad (Sunamganj). Election was held on 4 February 1992 in four centres and votes were counted on the same day by the Presiding Officers who forwarded the results in appropriate forms to the Returning Officer. The latter, after consolidating the results on 5 February, 1992 declared the candidate elected who got the highest number of votes. But the Election Commission, by an order dated 22 March, 1992, cancelled the election of one Centre (Alampur Primary School Centre) and directed repoll there. This order was challenged in the writ petition. Opposing the writ petition some defeated candidates alleged violent disturbance during poll and their complaint to the Polling Officers for stopping the election and also their complaint dated 13 March, 1992 to the Election Commission; but in support of this allegation they could not produce any evidence except a written allegation to the Election Commission dated 13-3-92. The High Court Division found that the Election Commission interfered not for any "disturbance during the poll", but it cancelled the result showing the ground that in the disputed centre "30 votes were cast in the names of dead persons, 58 votes were cast for absentee voters and that 98% votes were cast in " Centre, which was unbelievable" and further that out of the total votes cast, 99% votes went in favour of one candidate which was also "unbelievable". We do not think that the ground cited by the Election Commission for interference is reasonable for it is not impossible for the casting of 98% of the votes in the Centre nor it is impossible that 99% of those votes would go in favour of one candidate. As to the votes in the names of dead voters or absentee voters, it is not certainly a matter for consideration of the Election Commission, unless it is clearly proved that spurious votes were cast by capturing the polling booth. The High Court Division is found to have rightly interfered with the Election Commission's order which is clearly unjustified and uncalled for. Candidates aggrieved by the result of the election are at liberty to seek remedy before the Tribunal.
Civil Appeal Nos. 54 and 58 of 1992
12. Both appeals arise from Writ Petition No. 1024 of 1992 and relate to election for the office of Bakshimail Union (Moulvi Bazar). One of the appeals has been filed by the Election Commission and the other by a contesting candidate who was declared elected. Election was held on 25 January 1992 in six polling stations and in due course ballot papers were counted by the Presiding Officers and the results sent by them were consolidated by the Returning Officer who then declared respondent No. 1 elected on 26 January 1992 and forwarded the result for publication in the official Gazette, but the Election Commission by an order dated 29 February 1992 cancelled the result of one Centre, Bade Bukshimoil Madrassa Centre, and directed fresh poll there on the ground of gigantic rigging as appeared from the UNO's report. Election Commission found that in that Centre 94% of the votes were cast and out of that number 99% of votes went in favour of only one candidate, namely, respondent No. 1 and that this position prima facie indicated rigging. The High Court Division, however, took the view that this result was not impossible and that the Election Commission's interference was uncalled for. We agree with the High Court Division on this finding. Any candidate aggrieved is at liberty to go to the Tribunal.
Civil Appeal Nos. 3S and 55 of 1992
13. These two appeals arise from Writ Petition No. 1134 of 1992 and relate to election of Chairman for the office of Peroli Union Parishad (Narail). Election was held on 9 February 1992 in all the 7 centres, but for some reason the Election Commission directed fresh poll in Kharoria Primary School Centre which was held on 27 February 1992. Presiding Officer of that centre counted the votes on that day and forwarded the result to the Returning Officer who after consolidating the results on receipt from all the centres declared respondent No. 1 elected, but the Election Commission by an order dated 8 March 1992 cancelled the result of election of four centres, namely, Peroli Government Primary School, Jadabpur Primary School, Perolisthan Government Primary School and Kharoria High School and directed repoll there. The Election Commission's order was challenged in the writ petition. After hearing the petition in presence of both the parties, the High Court Division found that the Election Commission interfered with the matter only on the ground that 90% to 99% of the votes were also cast for dead voters and absentee voters. This finding of the Election Commission was based on the report of the Deputy Commissioner and other officers in connection with the election. In this case also the High Court Division followed their decision in Writ Petition No. 902 of 1992 and took the view that in the absence of any report about disturbance or irregularity during poll or counting of votes the Election Commission had no authority to cancel the result at the instance of defeated candidates on the surmise that the high percentage of votes cast showed impossibility of the result. The High Court Division found no contemporaneous allegation raised by any person about rigging of the electi6. The question as to the votes of absentee or dead voters and the alleged high percentage of votes cast are matters to be determined by the Tribunal on evidence. The High Court Division rightly allowed the writ petition.
Civil Appeal Nos. 43 and 57 of 1992
14. Both the appeals, one filed by the Election Commission and the other by a contesting candidate, who was declared elected by the Returning Officer, arise from Writ Petition No. 1328 of 1992. It relates to election for the office of Chairman of Juri Purba Union (Maulvi Bazar). Election was held on 22 January 1992 peacefully and without any interruption; counting of votes was also held peacefully and without any objection. In due course the Returning Officer after consolidating the results obtained from all the polling stations declared on 23 January 1992 respondent No. 1 elected, but the Election Commission after one month, cancelled the result of one Centre, Bara Dhamal Government Primary School Centre, and directed repoll there which was challenged in the writ petition. It was allowed by the High Court Division on finding that the Election Commission's interference was not at all justified. In that case the difference between the highest and the next to the highest number of votes obtained was only one. According to respondent No. 8 of the writ petition he got 852 votes in that centre as declared by the Presiding Officer who however reduced his total by 5 votes and showed the reduced number, that is, 847 in the prescribed form which he forwarded to the Returning Officer. On this allegation the Election Commission directed an enquiry which was held by the Nirbahi Officer and report was forwarded by the Deputy Commissioner to the Election Commission whereupon the Election Commission passed the impugned order. The High Court Division did not find any material to substantiate the allegation against the Presiding Officer as the result sheet submitted by him contained only one figure‑847 votes in favour of the complainant. The High Court Division did not think that this was a proper case to be considered by the Election Commission ignoring the specific provision that an election can be challenged only by an election petition before the Tribunal Decision in the Writ Petition No. 902 of 1992 was followed in this case also and writ petition was accordingly dismissed. We find nothing to interfere with the High Court Division's order, since appropriate remedy for the candidate feeling aggrieved at the action of the Presiding Officer lies in the Tribunal.
Civil Appeal Nos. 53 and 59 of 1992
15. Both the appeals, one by the Election Commission and the other by the candidate who was declared elected, arise from Writ Petition No. 938 of 1992. It relates to election of Chairman for the Office of Sultanpur Union Parishad (Chittagong). Election was held in three Centres on 25 January 1992 and after counting of votes by the Presiding Officers, result was consolidated by the Returning Officer who declared respondent Sohel Ahmed duly elected; but the Election Commission cancelled the result of one centre, namely, Rowjan College Centre, and directed repoll there on the ground that the result was blatantly manipulated by the Presiding Officer. This order was challenged in the writ petition which was allowed and the Election Commission's order was set aside. In this case the Election Commission acted on the basis of admitted records and found that the Presiding Officer, after counting the ballot papers of this Centre in presence of the parties, gave two contradictory reports on the result of counting. The anomaly was not explained satisfactorily. At the first counting, the Presiding Officer found 950 ballot papers missing and issued a certificate to this effect as demanded by some of the candidates present on the spot. After a few hours, the Presiding Officer counted the ballot papers again and found only two ballot papers missing. Case of a contesting candidate affected by this result is that it is his ballot papers numbering 950 which were purposely shown missing and that it is the Presiding Officer who did the mischief. But in this case also the High Court Division proceeded on the same line as in respect of other cases and held that in the absence of any report either from the Presiding Officer or from the Returning Officer about any irregularity in conducting the election in the disputed Centre the Election Commission had no jurisdiction to cancel the result without showing any opportunity to the petitioner to be heard. The Election Commission, apart from the admitted contradictory reports of the Presiding Officer, got an enquiry held by the Deputy Commissioner. But independent of the question of the Deputy Commissioner's report, which is not necessary in the matter of counting of votes after peaceful election, the Presiding Officer found 950 ballot papers missing from the ballot box and after a few hours found only two ballot papers missing, His explanation is that he had signed the first declaration about 950 ballot papers as demanded by the contesting candidates and that when he recounted, he found the correct position. This explanation is totally unsatisfactory and as such it has been rightly rejected by the Election Commission. Before us Mr. Amirul Islam, learned Advocate appearing for respondent No. 1, has tried to make out a new case for him. He has contended that 950 ballot papers found missing the Presiding Officer were "unused ballot papers". We find no substance in this contention, for counting of ballot papers in presence of candidates or their agents necessarily means counting of ballot papers which are cast in the poll in favour of different candidates and that such ballot papers are put into the ballot box from where these are taken out in presence of parties by the Presiding Officer for the purpose of counting. Report of the Presiding Officer shows that 950 votes were found missing from the ballot box. For this wrong counting it is the Presiding Officer who is clearly responsible. Facts of this case are clearly distinguishable from those of the other cases discussed above. The High Cod Division was wrong in holding that in the absence of any report from the Presiding Officer the Election Commission had no jurisdiction to interfere in the matter. How could a report from the Presiding Officer in this case be expected, since it would go against him alone? So, on the face of the record, the election result in this case is found manipulated for which the Election Commission's interference was justified.
In the result, Civil Appeal Nos. 53 and 59 are allowed; the impugned order of the High Court Division dated 6 July 1992 is set aside and that of the Election Commission directing repoll is restored. All other appeals namely, Civil Appeals Nos. 35, 43, 54, 55, 56, 57, 58 and 64 of 1992 are dismissed. No Order as to costs.