Jamshed Ali Vs. AKM Abdullah and others, 52 DLR (AD) (2000) 66

Case No: Civil Appeal No. 78 of 1998

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: Mr. A.K.M. Faiz,,

Citation: 52 DLR (AD) (2000) 66

Case Year: 2000

Appellant: Jamshed Ali

Respondent: AKM Abdullah and others

Subject: Election Matter,

Delivery Date: 2000-1-17

Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Latifur Rahman CJ
Bimalendu Bikash Roy Choudhury J
A M Mahmudur Rahman J
Mahmudul Amin Choudhury J
 
Jamshed Ali
………………..Appellant
Vs.
AKM Abdullah and others
……………… Respondents
 
Judgment
January 17, 2000.
 
The Local Government (Union Parishads) Ordinance, 1983
Section 26
When the election process is still on, the High Court Division ought not to have interfered with the matter on a disputed and controversial fact and resolved them on mere affidavits. High Court Division has exceeded the jurisdiction and taken upon itself the responsibility which lies on the shoulder of the Election Commission………………(8) 
 
Lawyers Involved:
AKM Faiz, Advocate, instructed by Md. Nowab Ali, Advocate-on-Record—For the Appellant.
MA Hannan, Senior Advocate, instructed by Md. Ataul Huq, Advocate-on-Record—For the Respondent No. 1.
 
Civil Appeal No. 78 of 1998.
(From the Judgment and order dated 9th June, 1998 passed by the High Court Division in Will Petition No. 44 of 1998).
 
JUDGMENT
 
Mahmudul Amin Choudhury J.
 
1. This appeal by leave is against judgment and order dated 9th June, 1998 passed by a Division Bench of the High Court Division in Writ Petition No. 44 of 1998 making the Rule absolute and directed respondent Nos. 1-4 to declare the result of the election of the Chairman of No. 7 Magalgaon Union Parishad, Sylhet.
 
2. The short fact leading to this appeal is that, respondent AKM Abdullah contested the election of the Chairman of the aforesaid Union Parishad held on 29-12-1997 and the polling of all centres were held peacefully and there was no trouble at the time of counting of the ballot papers of the Chairman. But at the time of counting of ballot papers of the Members and Women candidates some unruly persons armed with deadly weapons entered into the polling station at Lamagaon Talukpara Government Primary School centre and forcibly snatched away ballot papers and all other connected materials of Ward No. 4 of the said union. The Presiding Officer thereafter lodged first information report with Kotwali Police Station, Sylhet. In the meantime result of eight other centers were sent to the Returning Officer in Form ‘K’ but result of Lamagaon Talukpara Government Primary School was not forwarded due to disturbance and snatching away of ballot papers and other connected materials and the result was not declared by the Presiding Officer of the centre. Thereafter the matter was brought to the notice of the District Election Commission, Sylhet and also to the Election Commission. The Returning Officer sent the report recommending re-polling in the said primary school centre vide Annexure-'E' to the petition and to the Election Commission by Annexure-'F' to the petition soliciting instruction. On being aggrieved by these two Annexures-'E and F' the respondent moved the High Court Division praying for declaring him as elected Chairman of the said Union Parishad and obtained a Rule which was ultimately made absolute.
 
3. Leave was granted at the instance of the present appellant to consider the following:
 
“Mr. AKM Faiz, the learned Advocate appearing for the petitioner submits that before completion of counting of votes one chairman candidate namely, Haji Ajman Ali with the help of some hired ‘goondas’ had snatched away the ballot boxes and all other election materials from the centre in question and thereby the presiding officer could not prepare the result sheet and the Returning Officer in his report dated 30-12-97 (Annexure E) informed the District Election Officer that the presiding officer did not forward to him any result of the poll of the aforesaid polling station and, as such, the learned Judges of High Court Division erred in placing undue importance to the result produced by respondent No. 1 with his affidavit-in-opposition claiming that the same had been supplied to his polling agent by the presiding officer after counting of ballots of chairman candidates. The learned Advocate next submits that the presiding officer due to admitted disturbance at the polling station could not announce the result of counting of ballots and there having been clear violation of Rule 39 of the Election Rules, the returning officer rightly and in accordance with law recommended for holding re-election at the disputed centre, which report the District Election Officer in the discharge of his official duties under the law forwarded to the Election Commission (Annexure F), which under section 24 of the Ordinance has been vested. with the authority to conduct the election in accordance with rules and as such the learned Judges of the High Court Division have committed an error of law in declaring that the impugned Annexure E and F of the Writ Petition were issued without any lawful authority. The learned Advocate lastly submitted that it is a settled principle of law that the High Court Division should be very slow to exercise its extraordinary writ jurisdiction in election matter unless there appears a total lack of jurisdiction by the relevant authorities to proceed with the electoral process and for holding re-election which function has been vested in the Election Commission under the Local Government (Union Parishad) Ordinance, 1983, the learned Judges of the High Court Division erred in holding that the Returning Officer as well as the District election officer acted without any lawful authority in recommending holding of re election at the disputed polling center.”
 
4. Mr. AKM Faiz, learned Advocate appearing for the appellant, submits that there was disturbance in the Lamagoan Tallukpara Government Primary School centre during the time of counting of ballots. He submits that the High Court Division committed wrong in holding that there was no disturbance during the poll. But counting of ballot papers is a part of conducting of the election. So if any disturbance takes place even during counting of ballot papers the result may be withheld as per law and fresh election may be ordered.
 
5. Here in the present case during counting a disturbance admittedly took place and Presiding Officer failed to announce the result and reported the matter to the Returning Officer and also lodged first information report. It is further submitted that the High Court Division exceeded jurisdiction in directing publication of the result when the appropriate authority for such purpose is the Election Commission. This is within the election process. If the respondent is aggrieved by any action of the Returning Officer or the District Commission he may approach the Election Commission but he could not come directly to the High Court Division in its writ jurisdiction.
 
6. Mr. Md. Hannan, learned appearing on behalf of the writ petitioner respondent, on the other hand, submits that the disturbance started after polling and after completion of the counting of the ballot papers of the Chairman and during counting of ballot papers of the Members. He further submits that the Presiding Officer supplied to the agent of respondent, result sheet which is indicative of the fact that the counting was peacefully completed for the post of the Chairman. If any disturbance took place it was during the counting of ballot papers of the Members. Along with the writ petition the result sheet was also produced. Mr. Hannan next submitted that the signature of the Presiding Officer in the said sheet has not been denied or challenged. So the writ petitioner has got a good case.
 
7. Admittedly a disturbance took place in the aforesaid centre during counting of ballot papers. It is the case of the appellant that the disturbance took place at the time of counting of ballot papers of the Chairman but the contention of the respondent is that it took place after completion of counting of ballot papers of the Chairman and during the of counting of ballot papers of the members. This is a disputed question which could not be resolved by affidavits. Admittedly the Presiding Officer lodged first information report on the disturbance and he also submitted a report to the Returning Officer and the District Election Commission was also accordingly informed. If at all there was no disturbance as submitted by Mr. Hannan, he could have approached the Election Commission instead of moving the High Court Division in writ jurisdiction. In such a situation aggrieved party can always agitate the matter before the Election Commission. In support of his submission Mr. Faiz, placed reliance in the case of Nazir Ahmed vs. Bangladesh Election Commission & others reported in 41 DLR (AD) 87 wherein this Division has held that when the result was found to be controversial the High Court Division should not have interfered in such a controversial matter and resolving them by mere affidavits when question of fact are disputed.
 
8. It appears from the judgment of the High Court Division that they directed for publication of the result holding that there was no disturbance during the polling disregarding the fact that counting of ballot papers is a part of the election process and any disturbance if taken place during the counting will definitely affect the result of the election and it is the case of the appellant that the miscreants took away ballot papers and other materials which get support from Annexure E and F. When the election process in still on the High Court Division ought not to have interfered with the matter on a disputed and controversial fact and resolved them on mere affidavits, it appears that the High Court Division while disposing of the Rule has exceeded the jurisdiction and taken upon themselves the responsibility which according to the rule lies on the shoulder of the Election Commission.
 
9. In view of the aforesaid we hold that this is a fit case where we should interfere and set aside the judgment and order passed by the High Court Division in the aforesaid writ petition.
 
The appeal is accordingly allowed. Judgment and order dated 9-6-1998 passed in Writ Petition No. 44 of 1998 is hereby set aside and the Writ Petition is dismissed without any order as to cost.
 
Ed.