Md. Badrul Alam Chowdhury Vs. Md. Abdul Mannan and others, 38 DLR (AD) (1986) 270

Case No: Civil appeal No 96 of 1985

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Fazlul Karim,Mr. Golam Rabbani,,

Citation: 38 DLR (AD) (1986) 270

Case Year: 1986

Appellant: Md. Badrul Alam Chowdhury

Respondent: Md. Abdul Mannan

Subject: Election Matter,

Delivery Date: 1984-1-19

Supreme Court
Appellate Division
(Civil)
 
Present:
F.K.M.A. Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rah­man J
A. T. M Afzal J
 
Md. Badrul Alam Chowdhury
……………….Appellants
Vs.
Md. Abdul Mannan and others
..……………..Respondents
 
Judgment
January 19, 1984.
 
The Union Parishads (Election) Rule, 1983
Rules 38(3), 39 (1) (4), 45(a)
The Returning Officer had no jurisdiction to pass any order of recounting of votes. The Election disputes are ad-hoc disputes. Each case is to be decided on its own merit. The order that election of the returned candidate is void and the petitioner has been duly elected, passed by the Tribunal and affirmed by the learned District Judge has been rightly passed, which ought not to have been interfered by the High Court Division. The Appeal is allowed………(7,8,9)
 
Cases Referred to-
(1975) 27 DLR 307; Afzal Khan vs. Election Tribunal and another (1980) 32 DLR AD) 186.
 
Lawyers Involved:
Fazlul Karim, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record.—For the Appellant.
Golam Rabbani, Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record—For the Respondent No. 1.
Not Represented—For the Respondent Nos. 2- 6.
 
Civil appeal No 96 of 1985.
(From the Judgment and Order dated 15.9.85 passed by the High Court Division, Rangpur Bench in Civil Revision No. 228 of 1985.)
 
JUDGMENT
 
Badrul Haider Chowdhury J.
 
1. This appeal by special leave is directed against the judg­ment and order passed by the High Court Division, Rangpur Bench, in Civil Revision No. 228 of 1985.
Appellant filed an election petition under section 26 of the Local Government (Union Parishad) Ordinance No. LI of 1983 before the Election Tribunal challenging the ejection of the respondent as void and seeking the declaration that he had been duly elected as Chairman of Alambiditor Union Parishad No. XI of Kishoreganj Upazilla in the District of Nilphamari.
 
2. The appellant and respondents 2 and 3 contested the election, which was he on 10.1.84. The election was peaceful. On the basis of counting of ballots the appellant was declared elected by the Presiding Officer, but two days later 12.1.84 there was a re counting of votes whereupon it was found that the appellant got 3686 votes and respondent No.1 secured 3712 votes and accordingly, respondent No. 1 was declared elected as Chairman of, the Union Parishad.
 
3. The appellant then filed the election petition before the Election Tribunal and the Tribunal found that no notice to recount the votes was given to the appellant and these votes were recounted at a piece 15 miles away from the poling centre. The Tribunal further found collusion between the Presi­ding Officer and the Returning Officer. It was found further that the election was not materially affected by giving result of the votes in a plain-sheet of paper by the Presiding Officer and the first court. In view of the aforesaid the Tribunal allowed the petition and declared the appellant as Chairman. This decision was affirmed by the District Judge on appeal. The Appellate Court below found that tee counting of votes ought to have taken place at the centre immediately after the polling. But in the instant case, the Presiding Officer took away the ballot boxes to a place outside the centre. Reliance was placed on (1975) 27 DLR 307 and the learned District judge observed:
 
''It has been further held is the case, Imam Uddin Sarkar Vs. Election Com­mission of Bangladesh and others, that the Presiding Officer can not take away the ballot boxes to any place outside the centre and then count the votes."
 
The Appellate Court further disapproved of the method of recounting at the instance of the Returning Officer and upon analysis of the evidence the finding was:
 
“Considering the materials on record and the circumstances of the case I find the Presiding Officer and the Returning Officer concerned, being influenced by the appellant illegally, recounted the votes only to vary the result of the election which was arrived at by the count at the polling stations."
 
In view of this, the decision of the Tribunal was affirmed.
 
4. In revision before the High Court Division, the matter was again debated and the learned Single Judge took the view that there should be a fresh counting of the ballots with notice to the parties and in that view of the matter set aside the judgment of both the District Judge and she Election Tribunal.
Leave was granted to consider the corr­ectness of the decision of the High Court Division.
 
5. It was an election for Chairman-ship rule of the Union Parishads (Election) rule provide for counting of votes. Sub-rule (3) says for the purpose of counting ballot papers the Presiding Officer shall-(a) arrange separately the ballot papers in respecters member and of Chairman. Then rule 39(1) says that the Presiding Officer shall scrutinize ballot boxes and ballot papers for member and count the same in the presence of the contesting Candidate or their election: agents or polling agent and prepare a statement Form 'j' and declare to be elect editing candidate in favour of whom the highest number of votes have been cast. There was no tie, therefore, the rest of the 39(1) need not be considered.
Then Sub-rule (4) says:
 
When the ballot papers for Chairman. contained in the ballot box or boxes have scrutinized, the Presiding Officer in the presence of the contesting dates, and their election agents or polling agents as may be present, count separately, the valid votes cast in favour of candidates and prepare a statement in Form K and, with signature of the contesting candidates of their election or polling agents, send the same to returning Officer. (emphasis added).
 
Sub rule (5) says that the Returning Officer shall consolidate in Form L and shall declare to be elected the contesting candidate whom the highest number of votes has casts and since there was no tie the rest of the provision of sub rule (5) need not be considered.
 
6. It is distressing to note that the Courts bellow have not considered the rules in proper perspective in this case. In the case of member the Presiding Officer after counting will declare who has been elected, but in the case of Chairman Election, it is the Returning Officer, who after consolidating the ballot box in Form L' will declare who has been elected Chairman, vide Rule 39(4)(5). What happened in this case, the Presiding Offi­cer after counting gave a sheet, which showed that the appellant was elected and two days later on 12.1.84 there was re-counting at the behest of the Returning Officer. The power of re-counting is given in Rule 38(4) which says that the Presiding Officer may recount the votes—(a) on his own motion, if he considers It necessary or (b) upon tie request of a contesting candidate or an election agent present at the count if, in his opinion, the request is not unreasonable. As has been mentioned, it was at the instance of the Returning Officer that the ballot papers were re-counted after two days and that again at a place 15 miles away from the polling centre. On evidence, the Election Tribunal had found collusion of the Presiding Officer and the Returning Officer "to vary the result of the election which was arrived as by the count at the polling station. This finding of the Election Tribunal was affir­med by the learned District Judge, who observed:
 
"I find that the Presiding Officer and the Returning Officer concerned, being influ­enced by the appellant illegally, recoun­ted the votes only to vary the result of the election which was arrived at by the count at the polling stations."
 
7. The learned Subordinate Judge cor­rectly noticed that the Returning Officer had no Jurisdiction to pass any order for recounting. In this context the order of the teamed Single Judge of the High Court Division is still more unfortunate when it was said that the result declared at the polling station "cannot be the foundation of a legal decision of the election dispute." It is not the question of legal deci­sion of the election dispute. The question was whether the votes should be counted after 2 days at the Instance of the Returning Officer as a place far away from the polling station and that again in the absence of the parties specially, the appellant. The High Court Di­vision directed for recounting by its order dated 1S.9.8S. The election was held on 10.1.84. In other word, after one year and nine months the ballot papers are to be recou­nted. The question is whether it is feasible for doing so. It has directed to recount the vote after such a long time specialty when su­fficient foundation has not been laid for orde­ring recounting. The election disputes are ad-hoc disputes. Each case is to be decided on its own merit. Our observation, in the case of Afzal Khan vs. Election Tribunal and another (1980) 32 DLR AD) 186 is made in the facts of that case. Because in that case recounting of ballot papers was a ''material issue” and that is why we said:
 
"It is well settled that if recounting of ballot papers is a material issue before the Tribunal in connection with an election petition 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."
 
8. Bat in the facto of this case, collusion has been found by the Tribunal and the lear­ned District Judge between the Prodding Officer and the Returning Officer "only to vary the result of the election which was arr­ived at by the court at the polling station"
In view of this finding, no case has been made out for recounting of votes as we laid down in 32 DLR (AD) 186. The appellant was declared elected by the Presiding Officer after counting of votes although he had no authority for doing so, became it was the Returning Officer, who could do so vide Rule 39 (4) (5). However, after counting by the Presiding Officer which he was authorized to do, he gave out that the appellant got the highest vote this became widely known by the voting public. Two days later the recou­nting was done and the Returning Officer declared the respondent to be elected. That was challenged before the Tribunal on the ground of collusion Rule 45 says that the pe­titioner may claim as relief any of the follo­wing declaration:
 
"(a) that the election of any returned candidate is void and that the petitioner or some other person has been duly elected; or
(b) that the election as a whole is void."
In this case, the appellant prayed in terms of Clause (a) and the Tribunal after trial made such orders, namely, that the election of the respondent is void and the appellant has been duly elected.”
 
9. On appeal, this has been affirmed. Since election is a process of building up of the democratic structure of the society in acc­ordance with opinion of the public, we have no hesitation in saying that the prayer (a) has rightly been granted by the Election Tri­bunal and the decision of the Election Trib­unal has been affirmed by the appellate authority, namely, the learned District Judge, which ought not to have been interfered with by tae High Court Division.
 
In the result, therefore, this appeal is all­owed, and the judgment of the High Court Division is set aside and those of the Tribu­nals are restored and the appellant is declared elected as Chairman of the Alambiditor Union Parishad No. IX Kishoreganj Upazilla in the District of Nilphamari. There will be no order as to costs.
 
Ed.