Mahmudul Islam Chowdhury Vs. Md. Sultanur Kabir Chowdhury and others, 47 DLR (AD) (1995) 161

Case No: Civil Petition for leave to Appeal No. 121 of 1995

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. AR Yusuf,,

Citation: 47 DLR (AD) (1995) 161

Case Year: 1995

Appellant: Mahmudul Islam Chowdhury

Respondent: Md. Sultanur Kabir Chowdhury and others

Subject: Election Matter,

Delivery Date: 1995-5-25

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
 
Mahmudul Islam Chowdhury
........................Petitioner
Vs.
Md. Sultanur Kabir Chowdhury and others
……...............Respondents
 
Judgment
May 25th, 1995.
 
Representation of the People’s Order (President’s Order No. 155 of 1972)
Article 65

An election, in spite of some illegalities or irregularities, cannot be set aside unless it is proved that the result of the election has been materially affected thereby.
 
Lawyers Involved:
AR Yousuf, Senior Advocate instructed by, Mvi. Md. Wahidullah, Advocate‑on ‑Record ‑ For the Petitioner. 
Not Represented ‑ Respondents
 
Civil Petition for leave to Appeal No.121 of 1995
(From the Judgment and Order dated 27.11.94 passed by the High Court Division in FMA No.296 of 1993).
 
JUDGMENT
 
Mustafa Kamal J:
 
This petition for leave to appeal is from the judgment and order of the High Court Division dated 27.11.94 in FMA No.296 of 1993 allowing the appeal and setting aside the judgment and order passed by the Additional District Judge and Election Tribunal No.2, Chittagong, Election Tribunal Case No.8 of 1991.
 
2. In the last Parliamentary election held on 27.2.92 respondent No.1 was declared elected to Parliament from 293 Chittagong‑15 Constituency, defeating the petitioner by 668 votes. The petitioner filed the aforesaid Election Tribunal Case on the ground that under Article 8(2) of the Representation of the People's Order, 1972 the Election Commission published in the Official Gazette on 6.2.91 the final list of 83 polling stations specifying the area electors whereof will be entitled to vote at each polling station. By a Memo, dated 24.2.91 the Returning Officer with the active connivance of respondent No. 1 transferred voters from one polling station to another involving 11 polling stations disregarding the said Order and without the concurrence of the Election Commission, keeping the petitioner and his supporters absolutely in the dark and making a copy of the said Memo available to the petitioner's representative only two days before the polling when all electioneering mandatorily carne to an end. This last‑minute change confused the voters and many voters who would have otherwise voted for the petitioner could not cast their votes. As such, the result of the election has been materially affected and the election should be set aside.
 
3. Respondent No.1 contended in his written objection that there was no change of polling stations but only an adjustment of the electors and that cannot render the election void.
 
4. Both the Election Tribunal and on appeal the High Court Division concurrently held that the change of voters arrangements was done without Gazette Notification and unauthorisedly without the consent of the Election Commission in violation of the said Order and was therefore an illegal order. The Election Tribunal found that the petitioner obtained 2795 votes higher than respondent No.1 in the remaining 72 polling stations. In the disputed I I polling stations he obtained 2040 votes and respondent No.1 obtained 5501 votes. As such the votes cast in the disputed polling stations were decisive in the victory of respondent No. 1. The Tribunal also held that it was not possible to prove how many voter were dissuaded, from voting in the altered voting arrangements but from the voting trends as observed it can be concluded that the change has materially affected the election result. The tribunal therefore ordered re‑election in the disputed 11 polling stations.
 
5. The High Court Division, on the other hand, held that the Tribunal acted on surmise. The assertion of the petitioner that the result of the election was materially affected by the said change in voters arrangements has not been corroborated by any witness. Respondent No. 1, on the other hand, examined several witnesses to prove that voting was not affected by the said change. The High Court Division held that it was incumbent upon the petitioner to examine some witnesses to corroborate his claim that the result of the election was materially affected by the change. The High Court Division therefore set aside the judgment and order of the Tribunal.
 
6. Mr. AR Yousuf, learned Counsel for the petitioner, submits that the petitioner filed an application before the Tribunal on 19.8.93 and prayed for disposal of the election petition solely on one point of law, namely, whether the change in the polling stations was illegal and without jurisdiction and whether the election of respondent No.1 was liable to be set aside on that ground. The petitioner gave up his other allegations in the election petition. The Tribunal accepted the application and noted that at the time of hearing the arguments of both sides only this question of law was agitated by both sides. Mr. Yousuf submits that in the context of this development, the question of examination or non‑examination of witnesses proving or disproving the voters' behaviour owing to changes made in the polling stations does not arise.
 
7. An election, in spite of some illegalities or irregularities, cannot be set aside unless it is proved that the result of the election has been materially affected thereby. While the Tribunal placed reliance on circumstantial evidence, namely, the trend of voting in the remaining 72 polling stations, the High Court Division laid stress on examination of witnesses to prove the voters' knowledge or lack or knowledge, ability or inability to vote owing to the changes. It cannot be said that the High Court Division adopted an unreasonable, arbitrary an injudicious standard in asking for some direct evidence in the matter. Where direct evidence is not available or cannot even with due diligence be made available, reliance can be placed upon circumstantial evidence, but it is not the case of the petitioner that no direct evidence was available to prove his assertion. On the contrary, he stated in paragraph 7 of his election petition that he will produce evidence before the Tribunal that he had more supporters in the disputed 11 polling stations, that the voters did not know about the change and that the petitioner too had no opportunity to disseminate the information of change to the voters. He failed to do so.
 
8. In that view of the matter we do not find any cogent reason to accept the submission of Mr. AR Yousuf.
 
The petition is dismissed.
 
Ed.