Md. Jashim Vs. Election Commission and others, (Mohammad Ullah, J.)

Case No: Writ Petition No. 13216 of 2017

Judge: Gobinda Chandra Tagore, J And Mohammad Ullah, J.

Court: High Court Division,

Advocate: Mr. Md. Mansurul Haque Shafi with Mr. Dulal Sheikh, Advocates,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Md. Jashim

Respondent: Bangladesh Election Commission represented by the Chief Election Commissioner, Bangladesh Election Commission, Election Commission Secretariat, Agargaon, Dhaka and 7(seven) others.

Subject: Local Government (Union Parishad) Ain

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Gobinda Chandra Tagore, J

And

Mohammad Ullah, J.

 

Judgment on

11.11.2018

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Md. Jashim

. . .Petitioner

-Versus-

Bangladesh Election Commission represented by the Chief Election Commissioner, Bangladesh Election Commission, Election Commission Secretariat, Agargaon, Dhaka and 7(seven) others.

. . .Respondents

Local Government (Union Parishad) Ain, 2009

Section 20 and 21

Local Government (Union Parishad) Election Rules, 2010

Rules 38(3), 39(1) and 42(1)(2)

Only the Returning Officer is legally authorised and required thereby to declare elected the respective candidate, who has got the highest number of valid votes and also to publish the result of the counting of ballots in the public notice. Publication of the valid result in the public notice by the Returning Officer pursuant to the declaration made by himself is merely an official act. After such being declared elected by the Returning Officer, the elected candidate certainly acquires prima facie a legal right and such legal right derives from the mandate of the people. Similarly rule 43 imposes a responsibility on the Returning Officer to prepare a list of the elected candidates along with their particulars in Form- ‘Da’ who shall send the said list to the Election Commission and the Election Commission as soon as possible shall publish the said list in the Official Gazette under the power conferred by section 21 of the Act, 2009. There is no doubt that the Election Commission has plenary and supervisory power under rule 90 to ensure a free, fair, independent and transparent election. This power of the Election Commission is exercisable during the polling hours only.

. . . (15)

Local Government (Union Parishad) Election Rules, 2010

Rules 39(2)

The Presiding Officer can recount the votes if necessary at his own effort or if he is satisfied on the written application of a contesting candidate or his election agent or polling agent, at the polling center in presence of the contesting candidates or their agents as the case may be. But in no way the Presiding Officer can recount the votes behind the knowledge of the declared elected member like the petitioner.      . . . (17)

Local Government (Union Parishad) Election Rules, 2010

Rules 41(5)(Ka)

A restriction on the Returning Officer that he shall not recount the valid ballots unless a candidate or his election agent raised written objection against the counting of ballots by the Presiding Officer and unless the Returning Officer is so satisfied with such objection and/or unless he is otherwise directed by the Election Commission.                                                             ...(18)

Constitution of Bangladesh, 1972

Article 102

It appears from the written statement of the Returning Officer that he had no knowledge about recounting of ballots conducted by the Presiding Officer outside the polling center. The Returning Officer stated amongst others that “gm¡gm ®i¡V­L­¾cÐ f¤exNZe¡ e¡ L­l ®Le ®i¡V ®L­¾cÐl h¡¢q­l f¤exNZe¡ Ll¡ q­u­R, a¡ Bj¡l ®h¡dNjÉ euz” Admittedly, the Returning Officer did not recount the ballots and accord permission to the Presiding Officer to recount the same and therefore upon such recounting of votes declaration of the name of the respondent No. 8 as elected member for the said Ward of Char Abdulla Union Parishad is illegal.           . . . (19)

Mr. Md. Mansurul Haque Shafi with

Mr. Dulal Sheikh, Advocates

. . . For the petitioner

JUDGMENT

Mohammad Ullah, J:  On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, this Court issued the Rule Nisi in the following terms:

   “Let a Rule Nisi be issued calling upon the respondents to show cause as to why Memo No. 17.00.0000.079.41.001.17-(Awn-3)-465 dated 10.09.2017 issued from the office of respondent No. 1 declaring schedule of re-election of Ward No. 5 of Char Abdullah Union Parishad on 24.09.2017 (Annexure-I) should not be declared to have been made without lawful authority and is of no legal effect and as to why the respondents should not be directed to publish name of the petitioner in the official Gazette as winner as per earlier declaration in the polling centre and/or such other or further order or orders passed as to this Court may seem fit and proper.”

2.             At the time of issuance of the Rule on 20.09.2017, operation of the impugned Memo dated 10.09.2017 as contained in Annexure-I was stayed initially for a period of 3(three) months and subsequently from time to time the period of stay was extended.

3.             The facts relevant for disposal of the Rule as stated in the Writ Petition are that the petitioner is a former elected member of Ward No. 5, Char Abdullah Union Parishad (hereinafter referred to as the said Ward) under Upazilla- Ramgati, Lakshmipur. He again participated in the election and contested for the same post of member for the said Ward of Char Abdullah Union Parishad with the symbol of Football. The election was held on 23.05.2017 and after counting the votes, it has been found that the petitioner secured 205 votes while the nearest candidate Md. Ayub Nabi got 184 votes who contested in the election with the symbol of Cock and then the petitioner was declared elected for the post of member of the said Ward by the Presiding Officer. Accordingly, the Presiding Officer supplied a result sheet to the petitioner wherein all the candidates and their polling agents signed (annexure-A). After such declaration of result at polling center, the ballot boxes were taken to the Office of the Returning Officer. On the next day, the petitioner went to the Office of the Returning Officer and came to know that the defeated candidate Md. Ayub Nabi, respondent No. 8 was declared as elected member for the said Ward by another result sheet prepared and supplied by the same Presiding Officer showing his votes 192 and the petitioner’s 131. In the subsequent manipulated result sheet no signature of the other candidates or their agents was found except the signatures of said Md. Ayub Nabi and his agent. The petitioner having been aware of the subsequent result of election and recounting of ballots outside the polling center filed representations to the Upazilla Returning Officer, District Election Officer, and finally to the Election Commission on 24.05.2017, 25.05.2017 and 28.05.2017 respectively. Having received those representations of the petitioner, the Election Commission sent the dispute for inquiry and accordingly the Returning Officer by a letter dated 05.06.2017 asked the petitioner and others concern person for appearing before the inquiry committee on 06.06.2017. The petitioner appeared before the inquiry committee and submitted a written statement containing allegations about the purported result sheet of the election and recounting of ballots outside of the polling center in the absence of the petitioner and his agent. The Election Commission by another letter dated 03.07.2017 asked the Returning Officer and the Presiding Officer to submit their written explanations with regard to the allegations made by the petitioner. Both the Returning and the Presiding Officer on 04.07.2017 submitted their written explanations which were forwarded to the Election Commission on 05.07.2017. From the said written explanations of the Returning Officer and the Presiding Officer, it appears that both are contradictory in respect of recounting of ballots. The Returning Officer stated that he had no knowledge about recounting of the ballots wherein the Presiding Officer claimed that he recounted the ballots in presence of the Returning Officer. After investigation into the matter and scrutiny of the relevant papers and documents, the Election Commission found negligence of duties of the Presiding Officer and directed to Bangladesh Rural Development Board to take necessary action against the Presiding Officer. Thereafter, the Election Commission by the impugned Memo dated 10.09.2017 declared schedule for reelection of the said Ward of Char Abdullah Union Parishad. Having been aggrieved by the said decision of reelection of the Election Commission, the petitioner filed this Writ Petition and obtained the Rule and the order of stay as stated above. 

4.             No one appears to oppose the Rule although the matter has been appearing in the daily cause list for long days.

5.             At the outset, Mr. Md. Mansurul Haque Shafi, learned Advocate appearing for the petitioner submits that the  election of Ward No. 5 of Char Abdulla Union Parishad was held duly and no one raised objection claiming any illegality in holding of the election or casting of votes and the Presiding Officer having been found the petitioner secured highest number of votes declared him  as elected member of the said Ward and as such there was no question of recounting of ballots but the Presiding Officer illegally recounted the ballots outside  the polling center in collusion with the respondent No. 8 wherein he was declared elected member of the said Ward by a purported result sheet and as such subsequent recounting of ballots should be declared to have been done without lawful authority.

6.             The learned Advocate submits further that since no objection was raised from any quarter in the polling center about declaration of result and as such subsequent recounting of the ballots outside the polling center beyond the knowledge of the petitioner and other contesting candidates was done  for a collateral purpose and therefore basing on such purported recounting, the declaration of the respondent No. 8 as elected member of the said Ward is liable to be declared to have been done without lawful authority and is of no legal effect.

7.             The learned Advocate next submits that after counting the ballots, packing up the election materials the Presiding Officer became functous officio and therefore recounting of ballots is liable to be declared to have been recounted without lawful authority and is of no legal effect.

8.             The learned Advocate again submits that in no circumstances the Election Commission can direct to hold the reelection for the said Ward and as such issuance of the impugned Memo is liable to be declared to have been issued without lawful authority and is of no legal effect.

9.             The learned Advocate finally submits that since the result in Form-‘Da’ has yet not been sent to the Election Commission for publication of the same in the Official Gazette, the Writ Petition is very much maintainable challenging the illegal direction of reelection of the Election Commission.

10.         We have considered the materials on record and the submissions forwarded by the learned Advocate for the petitioner.

11.         It appears that the petitioner having been obtained highest votes was declared as the elected member of Ward No. 5 of Char Abdulla Union Parishad and a result sheet under the signature of the Presiding Officer was handed over to the petitioner wherein all the candidates and their agents put their signatures and as such at least there was no dispute over the counting of ballots at the polling station on the polling day. But subsequently, another purported result sheet was forwarded to the Returning Officer by the Polling Officer whereby the respondent No. 8 was declared as elected member of the said Ward of Char Abdulla Union Parishad wherein no signatures of the other candidates or their agent was found except the signatures of the respondent No. 8 and his agent.

12.         The case of the petitioner as made out in the Writ Petition is that whether the Presiding Officer after counting the ballots, declaring the petitioner as an elected member of the concerned Ward can recount the ballots outside the polling center and whether in such situation, the Election Commission can direct to hold reelection.

13.         Before addressing the factual matter or entering into therein let us examine the relevant provisions of Local Government (union parishad) Ain, 2009 and Local Government (union parishad) Election Rules, 2010 framed for the purpose of holding Local Government Election.  Sections 20 and 21 of the Local Government (union parishad) Ain, 2009 read with rules 38, 39, 40, 41, 42, 43 and 90 of the Rules, 2010 are relevant for our purpose and the said provisions of law are quoted below for ready reference:

Section 20z ¢eh¡QÑe f¢lQ¡me¡, CaÉ¡¢cz-(1) ¢eh¡ÑQe L¢jne LaѪL fËZ£a ¢h¢d Ae¤p¡­®l ¢ehÑ¡Qe L¢jne f¢lo­®cl ®Qu¡ljÉ¡e J pcpÉ­®cl ¢ehÑ¡Q­®el B­®u¡Se, f¢lQ¡me¡ J pÇf¡ce L¢l®­h Hhw Ae¤l©f ¢h¢d­a ¢ehÑ¡Qe L¢jne ¢ejÀl©f pLm h¡ ®k ®L¡e ¢ho­®ul ¢hd¡e L¢l­®a f¡¢l­®h, kb¡x-

(L) ¢ehÑ¡Qe f¢lQ¡me¡l  SeÉ ¢lV¡¢eÑw A¢gp¡l, pqL¡l£ ¢lV¡¢eÑw A¢gp¡l, ¢fËS¡C¢Xw A¢gp¡l J ®f¡¢mw A¢gp¡l ¢e­®u¡N Hhw a¡q¡­®cl rja¡ J c¡¢uaÄ;

(M) fË¡bÑ£­®cl j®­e¡eue, j­®e¡eu­®el ®r­®œ Bf¢š Hhw j­®e¡euefœ h¡R¡C;

(N) fË¡bÑ£NZ LaѪL fËcš S¡j¡ea NËqZ Hhw EJ² S¡j¡ea ­®gla fËc¡e h¡ h¡­®Su¡çLlZ;

(O) fË¡bÑ£a¡ fËaÉ¡q¡l J fËa£L hl¡Ÿ;

(P) fË¡b£Ñ­®cl H­®S¾V ¢e­®u¡N;

(Q) fË¢aࢾcÄa¡ Hhw ¢he¡ fË¢aࢾcÄa¡l ®r­®œ ¢eh¡ÑQe fÜ¢a;

(R) ®i¡V NËq­®Zl a¡¢lM, pju, Øq¡e Hhw ¢ehÑ¡Qe f¢lQ¡me¡ pwH²¡¿¹ AeÉ¡e¡ ¢hou;

(S) ®i¡Vc¡e fÜ¢a;

(T) fË¡ç ®i¡V h¡R¡C J NZe¡, gm¡gm ®O¡oe¡ Hhw pj¡e pwMÉL ®i¡V fË¡¢f¹l ®r­œ Ae¤plZ£u fÜ¢a;

(U) hÉ¡mV ®ff¡l J ¢ehÑ¡Qe pwH²¡¿¹ AeÉ¡eÉ L¡NSf­®œl ®qg¡Sa J ¢h¢m h¾Ve;

(V) ®k AhØq¡u ®i¡V NËqZ Øq¢Na Hhw f¤el¡u ®i¡V NËqZ Ll¡ k¡u;

(W) fË¡bÑ£­®cl ¢ehÑ¡Qe£ hÉu Hhw HacpwH²¡¿¹ k¡ha£u ¢hou;

(X) ¢ehÑ¡Q®e c¤e£Ñ¢aj§mL h¡ A‰ea L¡kÑLm¡f Hhw AeÉ¡eÉ ¢ehÑ¡Qe£ Afl¡d Hhw Eq¡l cä Hhw fË¢aà¾cÄ£ fË¡bÑ£­®cl BQlZ J BQlZ ¢h¢d i­®‰l cä;

(Y) ¢ehÑ¡Qe£ ¢h­®l¡d Hhw Eq¡l ¢hQ¡l J ¢eØf¢š;

(Z) Afl¡d ¢hQ¡l¡­®bÑ NËqZ, jÉ¡¢S­®ØVÊ­®Vl rja¡ fË®u¡N, j¡jm¡l ®ju¡c pwœ²¡¿¹ ¢hou¡¢c;

(a) ®i¡V NËq­®Zl ¢ce ¢ehÑ¡Qe pwœ²¡¿¹ c¡¢uaÄ f¡mela BCe fË­®u¡NL¡l£ pwÙÛ¡l pcpÉ­®cl ®NËga¡l Ll¡l rja¡; Hhw

(_) ¢ehÑ¡Qe pÇf¢LÑa Be¤o¢‰L AeÉ¡eÉ ¢houz

(2) ®L¡e hÉ¢š², Ef-d¡l¡ (1) Hl cg¡ (X) H E¢õ¢Ma

(L) ¢ehÑ¡Q­e c§e£Ñ¢aj§mL h¡ A®~hd L¡kÑLm¡f L¢l­®m ¢a¢e Ae§Ée 3 (¢ae) hvpl L¡l¡cä Abh¡ Ae¢dL 10 (cn q¡S¡l) V¡L¡ AbÑcä h¡ Eiuc­ä c¢äa qC­®he;

(M) ¢ehÑ¡Qe£ Afl¡d L¢l­®m ¢a¢e Ae§Ée 6 (Ru) j¡p Hhw Ae¢dL 3 (¢ae) hvpl L¡l¡c­®ä c¢äa qC­®he; Hhw

(N) BQlZ ¢h¢dl ®L¡e ¢hd¡e mwOe L¢l­®m ¢a¢e Ae§Ée 6 (Ru) j¡p L¡l¡cä Abh¡ Ae¢dL 10(cn q¡S¡l) V¡L¡ AbÑc®ä Abh¡ Eiu c­®ä c¢äa qC­®hez

Section 21z ¢ehÑ¡Qe£ gm¡gm fËL¡nz ®Qu¡ljÉ¡e Hhw pcpÉ ¢qp¡­h ¢ehÑ¡¢Qa pLm hÉ¢š²l e¡j ¢ehÑ¡Qe L¢jne, kb¡n£OË pñh, plL¡¢l ®N®S®V fËL¡n L¢l­®hz

Rule 38z ®i¡V NËqZ pj¡¢çl fl LlZ£uz-(1) ®i¡V­®L®­¾cÐ ®i¡VNËqZ pj¡ç qCh¡l fl, pqL¡l£ ¢fËS¡C¢Xw A¢gp¡lNZ ü ü ®i¡VL­®rl hÉ¡mV ®ff¡l pð¢ma hÉ¡mV h¡„pj§­®ql Y¡Le¡l SeÉ hÉhq©ahÉ p£m eðl Ef¢ÙÛa fË¢aà¾cÄ£ fË¡b£ÑNZ h¡ a¡q¡­®cl ¢ehÑ¡Qe£ H­®S¾V h¡ ®f¡¢mw H­®S¾V­®cl ¢m¢Mu¡ l¡¢Mh¡l p¤¢hd¡®­bÑ EµQü­l ®O¡oZ¡ L¢lu¡ Eš² p£m à¡l¡ h¡®­„l Y¡Le¡ p£m L¢l­®he Hhw fË®aÉL¢V p£mL«a hÉ¡mV h¡„ ¢fËS¡C¢Xw A¢gp¡®ll ¢eLV Sj¡ fËc¡e L¢l®­hez

(2) ¢fËS¡C¢Xw A¢gp¡l fË¢aà¾cÄ£ fË¡bÑ£NZ h¡ a¡q¡­®cl ¢ehÑ¡Qe£ H­®S¾V h¡ ®f¡¢mw H­®S¾V Ef¢ÙÛa b¡¢L­®m a¡q¡­®cl pÇj¤­®M fl£r¡ L¢lu¡ ¢e¢ÕQa qC­®he ®k, hÉ¡mV h¡„ h¡ hÉ¡mV h¡„pj§q ¢h¢d 28 Hl Ef-¢h¢d (3) Hl cg¡ (N)-®a h¢ZÑa ¢hd¡e j­a h¡ Ef-¢h¢d (1) Ae¤p¡­l ®kq~i¡®h hå Ll¡ qCu¡¢Rm ®pC AhÙÛ¡u Ara l¢qu¡­®R Hhw HCl©­f ¢e¢ÕQa qCh¡l fl ¢fËS¡C¢Xw A¢gp¡l hÉhq©a hÉ¡mV h¡„ h¡ h¡„pj§­®ql j®dÉ qC­®a pLm hÉ¡mV ®ff¡l h¡¢ql L¢lu¡ mC­®hez

(3) ¢fËS¡C¢Xw A¢gp¡l hÉhq©a hÉ¡mV h¡„ h¡ h¡„pj§q qC­a hÉ¡mV ®ff¡l h¡¢ql L¢lu¡,-

(L) ®Qu¡ljÉ¡e, pwl¢ra Bpe Hhw p¡d¡lZ Bp­®el pw¢nÔø Ju¡­®XÑl pcpÉ ¢ehÑ¡Q­®el hÉ¡mV ®ff¡l…¢m fªbL L¢l­®he; Hhw

(M) fË¢aà¾cÄ£ fË¡bÑ£N­®Zl f­®r p¤Öføi¡­®h ®i¡V fËc¡­®el ¢Qq²¢h¢nø hÉ¡mV ®ff¡lpj§q ¢ejÀh¢eÑa œ¦¢Vk¤š² A®~hd hÉ¡mV ®ff¡l qC­®a fªbL L¢l­®he, kb¡x-

(A) plL¡l£ p£m¡­®j¡ql Hhw fËc¡eL¡l£ A¢gp¡­®ll Ae¤ü¡rl¢hq£e hÉ¡mV  ®ff¡l;

(B) fËc¡eL¡l£ A¢gp¡­®ll Ae¤ü¡rl hÉa£a AeÉ ®L¡e ¢mMe B­®R Abh¡ plL¡l£ p£m®j¡ql Hhw ®i¡V fËc¡­®el ¢Qq² hÉa£a AeÉ ®L¡e ¢Qq² B­®R Abh¡ L¡N­®Sl Y~¥Ll¡ h¡ AeÉ ®L¡e fËL¡­®ll hÙº pw­®k¡¢Sa B­®R HCl©f hÉ¡mV ®ff¡l;

(C) ­®L¡e fË¢aà¾cÄ£ fË¡b£Ñ­®L ®i¡V fËc¡­®el ¢Qq² ¢hq£e hÉ¡mV ®ff¡l;

(D) HL¡¢dL fË¢aà¾cÄ£ fË¡bÑ£l f­®r ®i¡V fËc¡­®el ¢Qq² B­®R HCl©f hÉ¡mV ®ff¡l; h¡

(E) L¡q¡l Ae¤L¨­®m ®i¡V fËc¡e Ll¡ qCu¡­®R a¡q¡ Öfø eu HCl©f hÉ¡mV ®ff¡lx

a­®h naÑ b¡­®L ®k, ®L¡e fË¢aà¾cÄ£ fË¡bÑ£l Ae¤L¨­®m ­®i¡V¢Qq² fÊcš qCu¡­®R h¢mu¡ NZÉ qC­®h, k¢c ®cM¡ k¡u ®k, ®i¡V¢Qq²¢Vl AdÑ¡w­®nl ®h¢n Eš² fË¡bÑ£l fËa£L pð¢ma ÙÛ¡­®el j­dÉ Øføi¡­®h fËcš qCu¡­®R Hhw ®k­®r­®œ Eš² ®i¡V¢Qq² c¤CSe fË¡bÑ£l fËa£L pð¢ma ÙÛ¡­®el j­®dÉ pj¡e c¤Ci¡­N ¢hiš² qu, ®pC­®r­®œ Eš² hÉ¡mV ®ff¡l h¡¢am hÉ¡mV ®ff¡l ¢qp¡­h NZÉ qC­®hz

39z ®i¡V NZe¡z-(1) ¢fËS¡C¢Xw A¢gp¡l, ¢h¢d 38 Hl Ef-¢h¢d (3) Hl ¢hd¡e Ae¤k¡u£ hÉ¡mV ®ff¡lpj§q k¡Q¡C h¡R¡C L¢lh¡l fl, fË¢aà¾cÄ£ fË¡bÑ£NZ Abh¡ a¡q¡­®cl ¢ehÑ¡Qe£ H­®S¾V Abh¡ ®f¡¢mw H­®S¾V Ef¢ÙÛa b¡¢L­®m, a¡q¡­®cl Ef¢ÙÛ¢a­®a,-

(L) fË­®aÉL fË¢aà¾cÄ£ fË¡bÑ£l f­®r fËcš ®~hd pLm ®i¡V fªbLi¡­®h NZe¡ L¢l­®he;

(M) ®Qu¡ljÉ¡­®el SeÉ glj U -®a, pwl¢ra Bp­®el pc­®pÉl SeÉ glj U-1 H Hhw p¡d¡lZ Bp­®el pc­®pÉl SeÉ glj U-2 -®a NZe¡l ¢hhlZ£ fËÙºa L¢l­he Hhw Eš² ¢hhlZ£­®a fË­®aÉL fË¢aà¾cÄ£ fË¡bÑ£l fË¡ç ®i¡V p¤Øføi¡­®h Aw­®L J Lb¡u ¢m¢fhÜ L¢l­®he;

(N) ®Qu¡ljÉ¡e, pwl¢ra Bp­®el pcpÉ Hhw p¡d¡lZ Bp­®el pcpÉ ¢ehÑ¡Q­®el E­®Ÿ­nÉ ®k pLm hÉ¡mV ®ff¡l ®~hd Hhw A®~hd ¢qp¡­®h ¢Q¢q²a qCu¡­®R, ®pC pLm hÉ¡mV ®ff¡lppj§q fË­®aÉL ®r­®œ c¤C¢V L¢lu¡ ®j¡V Ru¢V Bm¡c¡ fÉ¡­®L­V l¡¢M­®he Hhw Eš² fÉ¡­®LVpj§­®ql fË­®aÉL¢V­®a ®i¡V­®L­®¾cÐl e¡jpq fÉ¡­®L­V l¢ra hÉ¡mV ®ff¡­®ll pwMÉ¡ J fËL«¢a ¢m¢fhÜ L¢lu¡ fÉ¡­®LV Ru¢V­®L HL¢V fËd¡e fÉ¡­®L®­V l¡¢Mu¡ Eq¡ p£m­®j¡qlL«a L¢l­®he; Hhw

(O) cg¡ (M) Hl Ad£®e fËÙ¹¤aL«a ¢hhlZ£pj§q, cg¡ (N) Ae¤p¡­l p£m­®j¡qlL«a hÉ¡mV ®ff¡l pð¢ma fÉ¡­®LV Hhw AeÉ¡eÉ L¡NSfœ J âhÉ¡¢c ¢h¢d 40 Hl ¢hd¡e Ae¤p¡­l ¢lV¡¢eÑw A¢gp¡­®ll ¢eLV ®fËlZ L¢l­®hez

(2) ¢fËS¡C¢Xw A¢gp¡l ¢ejÀ¢m¢Ma ®r­®œ f¤el¡u ®i¡V NZe¡ L¢l­®a f¡¢l­®he, kb¡x-

(L) fË­®u¡S­e, ü£u E­®cÉ¡­N; h¡

(M) ®L¡e fË¢aà¾cÄ£ fË¡bÑ£l h¡ ¢ehÑ¡Qe£ H­®S­®¾Vl h¡ ®f¡¢mw H­®S­®¾Vl p¤¢e¢cÑø ¢m¢Ma B­®hc­®el ®fË¢r®a, k¢c a¡q¡l ¢eLV B­®hce¢V k¤¢š²k¤š² h¢mu¡ ¢h­®h¢Qa quz

(3) ¢fËS¡C¢Xw A¢gp¡l, fË¢aà¾cÄ£ fË¡bÑ£NZ Abh¡ a¡q¡­®cl ¢ehÑ¡Qe£ H­®S¾V h¡ ®f¡¢mw H­®S¾V c¡h£ L¢l­®m, Ef-¢h¢d (1) Hl cg¡ (M) Hl Ad£e fËÙºaL«a NZe¡l ¢hhle£l paÉ¡¢ua Ae¤¢m¢f a¡q¡¢cN­®L fËc¡e L¢l­®hez

40z fÉ¡­®L®V lrZ£u L¡NSfœ, CaÉ¡¢cz-(1) ¢fËS¡C¢Xw A¢gp¡l-

(L) fË­aÉL fË¢aà¾cÄ£ fË¡bÑ£l Ae¤L¨­m fËcš ®~~hd ®i¡V…¢m fªbL fÉ¡­®L­®V pwlrZ L¢l­®he;

(M) cg¡ (L)-®a E¢õ¢Ma fË¢a¢V fÉ¡­®LV p£m­®j¡ql L¢lu¡ j¤M hå L¢l­®he Hhw fË¢a¢V fÉ¡­®L­®V l¢ra ®~~hd ®i¡­®Vl pwMÉ¡ Hhw ®k fË¡bÑ£l Ae¤L¨­®m ®i¡V fËcš qCu¡­®R a¡q¡l e¡j J ¢ehÑ¡Qe£ fËa£­®Ll e¡j fÉ¡­®L­®Vl Efl ¢m¢fhÜ L¢lu¡ ü¡rl L¢l­®he;

(N) ®Qu¡ljÉ¡e f­®cl SeÉ fË­®aÉL fË¢aà¾cÄ£ fË¡bÑ£l Ae¤L§­®m fËcš ®~~hd ®i¡V pð¢ma fÉ¡®LV…¢m HL¢V fËd¡e fÉ¡­®L­®V pwlrZ L¢l­®he;

(O) pwl¢ra Bp­®el pcpÉ f­®cl SeÉ fË®aÉL fË¢aà¾cÄ£ fË¡bÑ£l Ae¤L¥­®m fËcš ®~~hd ®i¡V pð¢ma fÉ¡­®L®V…¢m AeÉ HL¢V fËd¡e fÉ¡­®L­®V pwlrZ L¢l­®he;

(P) p¡d¡lZ Bp­®el pcpÉ f­®cl SeÉ fË®aÉL fË¢Zà¾cÄ£ fË¡bÑ£l Ae¤L§­®m fËcš ®~hd ®i¡V pð¢ma fÉ¡­®LV…¢m AeÉ HL¢V fËd¡e fÉ¡­®L­®V pwlrZ L¢l­®he; Hhw

(Q) cg¡ (N), (O) Hhw (P)-®a h¢ZÑa fËd¡e fÉ¡­®LV…¢m plL¡l£ p£m­®j¡ql à¡l¡ hå L¢l­®he Hhw Eq¡­®a l¢ra ®R¡V fÉ¡­®L­®Vl pwMÉ¡ E­®õM L¢lu¡ fËd¡e fÉ¡­®L­®Vl Ef­l ü¡rl L¢l­®hez

(2) ¢fËS¡C¢Xw A¢gp¡l ®Qu¡ljÉ¡e, pwl¢ra Bp­®el pcpÉ Hhw p¡d¡lZ Bp­®el pcpÉ f­®c ¢ehÑ¡Q­®el E­®Ÿ­nÉ ®k pLm A®~hd hÉ¡mV ®ff¡l NZe¡ Ll¡ qu e¡C ®pC…¢m fªbL fÉ¡­®L­®V pwlrZ L¢l­®he Hhw fÉ¡­®L­®Vl Ef­l Eš² f­®cl e¡j J hÉ¡mV ®ff¡­®ll pwMÉ¡ ¢m¢fhÜ L¢l­®he Hhw plL¡l£ p£m­®j¡ql à¡l¡ hå L¢lu¡ Eq¡l Ef­l ü¡rl L¢l­hez

(3) ¢fËS¡C¢Xw A¢gp¡l ¢ejÀh¢ZÑa L¡NSfœ J âhÉ¡¢c fªbL fÉ¡­®L®­V l¡¢Mu¡ Eš² L¡NSfœ J âhÉ¡¢cl ¢hhlZ£ ¢m¢fhÜ L¢l­®he Hhw fÉ¡­®LV…¢m p£m­®j¡ql L¢l­®he, kb¡x-

(L) Cp¤ÉL«a e­®q HCl©f h¨vmV ®ff¡lppj§q (j¤¢sfœpq)x

(M) ®~~hd J A®~hd (h¡¢am) hÉ¡mV ®ff¡lpj§q;

(N) eø Hhw h¡¢amL«a hÉ¡mV  ®ff¡lpj§q;

(O) ¢Qq² fËcš ®i¡V¡l a¡¢mL¡l Ae¤¢m¢fpj§q;

(P) Cp¤ÉLªa hÉ¡mV ®ff¡­®ll j¤¢sfœpj§q;

(Q) plL¡l£ p£m­®j¡ql J ®i¡V j¡¢LÑw p£m; Hhw

(R) ¢lV¡¢eÑ A¢gp¡­®ll ¢e­®cÑn Ae¤p¡­®l AeÉ¡eÉ L¡NSfœ J âhÉ¡¢cz

(4) ¢fËS¡C¢Xw A¢gp¡l, ®Qu¡ljÉ¡e ¢ehÑ¡Q­®el ®r®œ glj- V ®a, pwl¢ra Bp­®el pcpÉ ¢ehÑ¡Q­®el ®r­®œ glj- V-1 H Hhw p¡d¡lZ Bp­®el pcpÉ ¢ehÑ¡Q­®el ®r­®œ glj- V-2 ®a hÉ¡mV ®ff¡­ll fªbL ¢qp¡®h fËÙºa L¢l­®hez

(5) ¢fËS¡C¢Xw A¢gp¡l HC ¢h¢dl Ad£e acLaѪL p£m­®j¡qlL«a J ü¡r¢la fË¢a¢V ¢hhlZ£ Hhw fÉ¡­®L­®Vl Efl fË¢aà¾cÄ£ fË¡bÑ£ h¡ ¢ehÑ¡Qe£ H­®S¾V h¡ ®f¡¢mw H­®S¾V, k¢c a¡q¡l¡ Ef¢ÙÛa b¡­®Le J ü¡rl L¢l­®a pÇja qe, Hl ü¡rl NËqZ L¢l­®hez

(6) ¢fËS¡C¢Xw A¢gp¡l acLaѪL fËÙºaL«a fÉ¡®LVpj§­q ®i¡V NZe¡l ¢hhlZ£, hÉ¡mV ®ff¡­®ll ¢qp¡h Hhw acLaѪL Nªq£a AeÉ¡eÉ ®lLXÑ J âhÉ¡¢c A¢hm­®ð ¢lV¡¢eÑw A¢gp¡­®ll ¢eLV ®fËlZ L¢l­®hez

41z gm¡gm HLœ£Ll­®Zl ®e¡¢Vn, ®i¡­®Vl pja¡l ®r­®œ f¤ex­®i¡V, CaÉ¡¢cz-

¢lV¡¢eÑw A¢gp¡l gm¡gm HLœ£Ll­®Zl E­®Ÿ­®nÉ a¡¢lM, pju Hhw ÙÛ¡e E­®õMf§hÑL ace¤p¡­®l fË¢aà¾cÄ£ fË¡bÑ£ Hhw a¡q¡­®cl ¢ehÑ¡Qe£ H­®S¾VNZ­®L Ef¢ÙÛa b¡¢Lh¡l m­rÉ HL¢V ¢m¢Ma ®e¡¢Vn ¢c­®he Hhw Ef¢ÙÛa fË¢aà¾cÄ£ fË¡bÑ£ Hhw ¢ehÑ¡Qe£ H®S¾VN­®Zl pÇj¤­®M, ¢fËS¡C¢Xw A¢gp¡l LaѪL ®fË¢la NZe¡l gm¡gm HLœ£LlZ L¢l­®hez

(2) ..........................................

(3)..........................................

(4) ..........................................

(5) ¢lV¡¢eÑ A¢gp¡l ®L¡e ®i¡V­®L­®¾cÐl ®~hd hÉ¡mV ®ff¡lpj§q f¤el¡u NZe¡ L¢l­®he e¡, k¢c e¡

(L) ®L¡e fË¢aà¾cÄ£ fË¡bÑ£ h¡ a¡q¡l ¢ehÑ¡Qe£ H­®S¾V ¢m¢Mai¡­®h ¢fËS¡C¢Xw A¢gp¡­®ll NZe¡ pÇf­®LÑ Bf¢š L­®le Hhw ¢lV¡¢eÑw A¢gp¡l Eš² Bf¢šl kb¡bÑa¡ pÇf­®LÑ p¿ºø qe; Abh¡

(M) ¢a¢e L¢jne LaѪL Cq¡ L¢l­®a B¢cø qez

(6) .................................................

42z gm¡gm HLœ£LlZ, ¢ehÑ¡¢Qa fË¡bÑ£l e¡j ®O¡oZ¡, a¡¢mL¡ fËÙºa Hhw Eq¡l paÉ¡¢ua L¢f plhl¡q CaÉ¡¢cz- (1) ¢lV¡¢eÑw A¢gp¡l, ¢h¢iæ ®i¡V­®L¾cÐ qC­a ¢h¢d 40 Hl Ef-¢h¢d (6) H E¢õ¢Ma ®i¡V NZe¡l ¢hhlZ£ Hhw hÉ¡mV ®ff¡­®ll ¢qp¡h fË¡¢çl fl, h¡ ¢h¢d 41 Hl Ef-¢h¢d (6) Hl Ad£e f¤ex­®i¡V NËq­®Zl gm¡gm f¡Ch¡l fl, acLaѪL ¢edÑ¡¢la pj­u, fË¢aà¾cÄ£ fË¡bÑ£N­Zl ¢Lwh¡ a¡q¡­cl ¢ehÑ¡Qe£ H­S¾V h¡ ®f¡¢mw H­®S¾VN­®Zl E¢ÙÛ¢a­®a, fË­®aÉL fË¢aà¾cÄ£ fË¡bÑ£l Ae¤L¨­®m fËcš ®~hd ®i¡Vpj¤q, ®Qu¡ljÉ¡­el SeÉ glj- W, pwl¢ra Bp­®el pc­®pÉl SeÉ glj- W-1 Hhw p¡d¡lZ Bp­®el pc­®pÉl SeÉ glj- W-2 ®a HL£i¥a L¢l­®he, Hhw ®k f¡ÊbÑ£l Ae¤L¨­®m phÑ¡¢dL pwMÉL ®i¡V fËcš¹ qCu¡®R a¡q¡­®L ¢ehÑ¡¢Qa ®O¡oZ¡ L¢l­®hez

(2) ¢lV¡¢eÑw A¢gp¡l Ef-¢h¢d (1) Hl Ad£e NZe¡l gm¡gm fË¡¢çl fl NZ¢h‘¢çl j¡dÉ­j fËL¡n L¢l­hez

(3) Ef-¢h¢d (2) Hl Ad£e fËL¡¢na NZ¢h‘¢ç®a fË­®aÉL fË¢aà¾cÄ£ fË¡bÑ£l e¡j J Ef-¢h¢d (1) Hl Ad£e HLœ£Ll­®Zl g­m fË¡ç ®j¡V ®i¡­®Vl pwMÉ¡ p¤Øføi¡­h Aw­®L J Lb¡u E­®õM b¡¢L­®a qC­®hz

(4) ¢lV¡¢eÑw A¢gp¡l, Ef-¢h¢d (2) Hl Ad£e NZ-¢h‘¢ç fËL¡¢na qCh¡l fl A¢hm­®ð L¢jn®el ¢eLV ¢edÑ¡¢la gl­j, HLœ£LlZ ¢hhlZ£pq ¢ehÑ¡¢Qa fË¡bÑ£­®cl HL¢V a¡¢mL¡ c¡¢Mm L¢l­®hez

(5) ¢lV¡¢eÑw A¢gp¡l, ¢edÑ¡¢la fÜ¢a­®a HLœ£LlZ ¢hhlZ£ Hhw ¢ehÑ¡¢Qa fË¡bÑ£­®cl a¡¢mL¡ fËÙºa L¢lh¡l fl, ®k pLm fÉ¡­®LV J ¢hhlZ£ gm¡gm HLœ£Ll­®Zl SeÉ ®M¡m¡ qCu¡¢Rm, A¢hm­®ð ­®pC…¢m­L f¤el¡u i¢aÑ L¢lu¡ p£m­®j¡ql L¢l­®he, Hhw Ef¢ÙÛa fË¡bÑ£ J a¡q¡­cl ¢ehÑ¡Qe£ H­®S¾VNZ­®L, a¡q¡l¡ CµR¡ L¢l­®m, Ae¤l©f fÉ¡®LV…¢m­®a a¡q¡­®cl cÙ¹Ma J p£m®­j¡ql fËc¡®el SeÉ Ae¤j¢a ¢c­®hez

(6) ¢lV¡¢eÑw A¢gp¡l, ®L¡e fË¢aà¾cÄ£ fË¡bÑ£ h¡ a¡q¡l ¢ehÑ¡Qe£ H­®S¾V h¡ ®f¡¢mw H­®S¾VN­®Zl j®dÉ, k¡q¡l¡ HLœ£LlZ ¢hhlZ£ J ¢ehÑ¡¢Qa fË¡bÑ£®cl a¡¢mL¡ f¡C­®a EµR¤L a¡q¡¢cN­®L ®Qu¡ljÉ¡e ¢ehÑ¡Q­®el ®r®­œ glj- W, pwl¢ra Bp­®el pcpÉ ¢ehÑ¡Q­®el ®r­®œ glj- W-1 Hhw p¡d¡lZ Bp­el pcpÉ ¢ehÑ¡Q­el ®r­œ glj- W-2 H HL£i¨a ®i¡V NZe¡l ¢hhlZ£ J ¢ehÑ¡¢Qa fË¡bÑ£­cl a¡¢mL¡l paÉ¡¢ua L¢f plhl¡q L¢l­hez

43z gm¡gm ®N­®S­V fËL¡nz- ¢lV¡¢eÑw A¢gp¡l, ¢h¢d 21 Hl Ad£e ¢he¡ fË¢aà¾cÄ£a¡u ¢ehÑ¡¢Qa Hhw ¢h¢d 42 Hl Ad£®e ¢ehÑ¡Q­®el gm¡gm ®O¡oZ¡l fl, ¢ehÑ¡¢Qa h¢mu¡ ®O¡¢oa pLm fË¡bÑ£l e¡j J ¢WL¡e¡ pð¢ma HL¢V a¡¢mL¡ glj- X ®a fËÙ¹¤a L¢l­®he Hhw Eš² a¡¢mL¡ L¢jn­®el ¢eLV ®fËlZ L¢l­®he Hhw L¢jne ¢ehÑ¡¢Qa fË¡bÑ£l e¡j pð¢ma Eš² a¡¢mL¡ plL¡l£ ®N­®S­®V fËL¡n L¢l­®hz

90z L¢afu ®r­®œ L¢jn­®el ¢h­®no rja¡z-¢iæl©f ®L¡e ¢hd¡e hÉa£a, L¢jne-

(L) ®i¡VNËq­®Zl ¢ce ®k ®L¡e Abh¡ pLm ®i¡V­®L®­¾cÐl ®i¡VNËqZ håpq ¢ehÑ¡Q­®el ®k ®L¡e fkÑ¡­u p¡j¢NËL ¢ehÑ¡Qe hå L¢l­®a f¡¢l­®h, k¢c Eq¡l ¢eLV p­®¿¹¡oSeLi¡­®h fËa£uj¡e qu ®k, ¢ehÑ¡Q­®e hmfË­®u¡N, i£¢a fËcnÑe, ®i¡V­®L¾cÐ A®~hd cMm, hÉ¡mV ®ff¡l ¢Rea¡C, hÉ¡mV ®ff¡l i¢a hÉ¡mV h¡„ ¢Rea¡C, ®S¡lf§hÑL A­®eÉl ®i¡V~ fËc¡®e, Q¡f pª¢øpq ¢h¢d h¢qiѧa ¢h¢iæ AfL­®jÑl L¡l­Z h¡ Eq¡l ¢h­®hQe¡u AeÉ ®k ®L¡e L¡l­Z eÉ¡upwNa J ¢el­®fri¡­®h Hhw BCe Ae¤k¡u£ ¢ehÑ¡Qe f¢lQ¡me¡ L¢l­®a prj qC­®h e¡;

(M) ¢ehÑ¡Q­®el ®k ®L¡e fkÑ¡­u ®k ®L¡e ®i¡V­®L®¾cÐl ®i¡Y~~NËqZ hå L¢l­®a f¡¢l­®h, k¢c Eq¡l ¢eLV p­®¿¹¡oSeLi¡­®h fËa£uj¡e qu ®k, ¢ehÑ¡Q­e hmfË­®u¡N, i£¢a-fËcnÑe, Q¡f pª¢ø, ¢h¢iæ ¢hl¡Sj¡e AfL®­jÑl L¡l­®Z eÉ¡upwNa J ¢el­fri¡­®h Hhw BCe Ae¤k¡u£ ¢ehÑ¡Qe f¢lQ¡me¡ ¢e¢ÕQa L¢l­a prj qC­®h e¡;

(N) ®L¡e hÉ¡mV ®ff¡l h¡¢am h¡ NËqZpq, HC ¢h¢dj¡m¡l Ad£e ®L¡e LjÑLaÑ¡ LaѪL fËcš ®L¡e B­®cn f¤e¢hÑ­®hQe¡ L¢l­®a f¡¢l­®h; Hhw

(O) BCe J HC ¢h¢dj¡m¡l ¢hd¡e Ae¤k¡u£ ­®i¡V®L­¾cÐl ¢ehÑ¡Qe ¢el­®fr, eÉ¡upwNa J p¤ù¥i¡®h f¢lQ¡me¡ ¢e¢ÕQaLl­®Zl SeÉ, Eq¡l j­a, fË­®u¡Se£u ¢e­®cÑn¡hm£ S¡l£ L¢l­®a, rja¡ fË­®u¡N L¢l®­a Hhw fË¡p¢‰L AeÉ¡eÉ B­®cn fËc¡e L¢l®­a f¡¢l®­hz

14.         The Election Commission is established under Article 118 of the Constitution of the People’s Republic of Bangladesh. Article 118(4) proposes that the Election Commission shall be independent in exercise of its function subject to the Constitution and any other law.  Article 119(2) specifies that the Election Commission shall perform such functions in addition to those specified in Clauses (a),(b),(c), and (d) of Article 119(1) of the Constitution, as may be prescribed by the Constitution or by any other law. Thus, Articles 118(4) and 119(2) of the Constitution clearly describe that the Election Commission shall perform its functions as may be prescribed by and in accordance with the Constitution and any other law. The election of Union Parishad is organized, conducted and held under the Local Government (union parishad) Ain, 2009 (hereinafter referred to as the said Act, 2009) and the Local Government (union parishad) Election Rules, 2010 (the Rules, 2010). Therefore, the Election Commission established under Article 118 of the Constitution is also conferred to the power to organize, conduct and hold the Union Parishad Election under the said Act, 2009 and the Rules, 2010.

15.         Section 20 of the said Act, 2009 provides that the Election Commission shall organize, conduct and hold the Union Parishad Election as per Election Rules. Section 21 of the said Act imposes a responsibility on the Election Commission to publish the names of the persons elected as chairman and members in the Official Gazette as soon as possible. The Election Commission made provisions under rule 38(3) of the Rule, 2010 for scrutinizing the casting votes by the Presiding Officer in presence of the contesting candidates or their agents, if any. Under rule 39(1)(Ka) of the Rules, 2010, the Election Commission made provisions for counting separately the valid votes cast in favour  of each of the contesting candidates; and under rule 39(1)(Kha) for preparation of the statements of the counting of the ballots cast in favour of each of the contesting candidates both in number and letter in Form- ‘Neo’ for the Chairman candidates, in Form- ‘Neo-1’ for the member candidates for the  reserve seats and in Form- ‘Neo-2’ for the member candidates  for the general seats. Rule 42(1) provides that having received the statements of the counting of the casting votes from the Presiding Officer pursuant to rule 39(1)(Gha) read with rule 40(6), the Returning Officer shall consolidate the valid votes cast in favour of the Chairman candidates in Form- ‘Tha’’, the member candidates for the reserve seats in Form- ‘Tha-1’, and the member candidates for the general seats in Form- ‘Tha-2’ and shall declare the respective candidates elected in whose favour the highest number of votes has been cast. Rule 42(2) stipulates that having received the result of the counting of ballots the Returning Officer shall publish the same in a public notice. Under the provisions of rules 42 (1) and 42 (2) only the Returning Officer is legally authorised and required thereby to declare elected the respective candidate, who has got the highest number of valid votes and also to publish the result of the counting of ballots in the public notice. Publication of the valid result in the public notice by the Returning Officer pursuant to the declaration made by himself is merely an official act. After such being declared elected by the Returning Officer, the elected candidate certainly acquires prima facie a legal right and such legal right derives from the mandate of the people. Similarly rule 43 imposes a responsibility on the Returning Officer to prepare a list of the elected candidates along with their particulars in Form- ‘Da’ who shall send the said list to the Election Commission and the Election Commission as soon as possible shall publish the said list in the Official Gazette under the power conferred by section 21 of the Act, 2009. There is no doubt that the Election Commission has plenary and supervisory power under rule 90 to ensure a free, fair, independent and transparent election. This power of the Election Commission is exercisable during the polling hours only.

16.         In the instant case, after counting the ballots at the polling center, the Presiding Officer declared the petitioner as the elected member of the said Ward of Char Abdulla Union Parishad, and upon such declaration the Presiding Officer issued an authenticated result sheet signed by him, to the contesting candidates and their respective agents, packed up the election materials and sealed off the same, therefore virtually  he became functous officio and consequently he had no authority to reopen the sealed election materials which had been done in accordance with law. But it appears from the materials on record that subsequently the Presiding Officer counted the ballots outside the polling center beyond the knowledge of the petitioner and other contesting candidates and as such the subsequent counting of ballots was unlawful and beyond the jurisdiction of the Presiding Officer.

17.         Under the provisions of rule 39(2) of the Rules, 2010 the Presiding Officer can recount the votes if necessary at his own effort or if he is satisfied on the written application of a contesting candidate or his election agent or polling agent, at the polling center in presence of the contesting candidates or their agents as the case may be. But in no way the Presiding Officer can recount the votes behind the knowledge of the declared elected member like the petitioner.

18.         Rule 41(5)(Ka) imposes a restriction on the Returning Officer that he shall not recount the valid ballots unless a candidate or his election agent raised written objection against the counting of ballots by the Presiding Officer and unless the Returning Officer is so satisfied with such objection and/or unless he is otherwise directed by the Election Commission.

19.         It appears from the written statement of the Returning Officer that he had no knowledge about recounting of ballots conducted by the Presiding Officer outside the polling center. The Returning Officer stated amongst others that “gm¡gm ®i¡V­®L­¾cÐ f¤exNZe¡ e¡ L®­l ®Le ®i¡V ®L®­¾cÐl h¡¢q­l f¤exNZe¡ Ll¡ q­®®R, a¡ Bj¡l ®h¡dNjÉ euz” Admittedly, the Returning Officer did not recount the ballots and accord permission to the Presiding Officer to recount the same and therefore upon such recounting of votes declaration of the name of the respondent No. 8 as elected member for the said Ward of Char Abdulla Union Parishad is illegal.

20.         It appears from the Annexure-A that in Form- ‘Neo-2’ the Presiding Officer after counting the votes in presence of all the contesting candidates and their agents declared the petitioner as elected member. Therefore, subsequent manipulated result prepared in the same From- ‘Neo-2’ by the Presiding Officer showing the respondent No. 8 as elected member of the said Ward has been done in clear violation of the Rules, 2010 and as such, the subsequent purported result prepared on the basis of illegal recounting by the Presiding Officer and publication of the same in Form- ‘Tha-2’ under rule 42(1) and (6) is not a lawful result of the said Ward. Even after consultation with the Returning Officer, the Presiding Officer had no jurisdiction to recount the valid ballots without any written representation of the contesting candidate outside the polling center. Therefore, the Form- ‘Tha’ filled up by the Returning Officer under rule 42(1) and (6) on the basis of an illegal subsequent recounting of ballots prepared by the Presiding Officer has got no legal effect. In spite of the fact as stated above, the Election Commission direct to hold reelection by the impugned order. The Election Commission cannot blow hot and cold at the same time. Since the subsequent result sheet prepared on the basis of a purported recounting of ballots we find that the result published by the Presiding Officer at the polling station declaring the petitioner as the elected member for the said Ward of Char Abdulla Union Parishad is a valid result in the eye of law and as such a direction should be given upon the Returning Officer to prepare a fresh result sheet in Form- ‘Tha-2’ and send the same to the Election Commission in Form- ‘Da’ for publication of the same in the Official Gazette.

21.         Having considered the entire gamut, we find substance in the submissions of the learned Advocate for the petitioner and therefore, the Rule should be made absolute.

22.         Accordingly, the Rule is made absolute.

23.         The impugned Memo No. 17.00.0000.079 .41.001.17-(Awn-3)-465 dated 10.09.2017 issued by the respondent No. 1 declaring the schedule of reelection of Ward No. 5 of Char Abdulla Union Parishad under Upazilla-Ramgati, Lakshmipur is hereby declared to have been issued without lawful authority and is of no legal effect.

24.         The Returning Officer is hereby directed to prepare a result sheet, on the basis of the counting of votes by the Presiding Officer declaring the petitioner as elected member of Ward No. 5 of Char Abdulla Union Parishad in Form- ‘Tha-2’ and send the result to the Election Commission in Form- ‘Da’ for publication of the same in the Official Gazette within 15 (fifteen) days from the date of receipt of a issue copy or certified copy of the judgment and order of this Court.

25.         Let a copy of the judgment be sent to the respondent Nos. 1 and 7 for compliance.

Ed.



Writ Petition No. 13216 of 2017