Md. Shajahan Vs. Md. Sadeq and another, 38 DLR (AD) (1986) 275

Case No: Civil Appeal No. 2 of 1986

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Dr. Kamal Hossain,,

Citation: 38 DLR (AD) (1986) 275

Case Year: 1986

Appellant: Md. Shajahan

Respondent: Md. Sadeq

Subject: Election Matter,

Delivery Date: 1986-3-6

Supreme Court
Appellate Division
(Civil)
 
Present:
F.K.M. A. Munim CJ
Shahabuddin Ahmed J
M. H. Rahman J
ATM Afzal J
 
Md. Shajahan
…………………..Appellant
Vs.
Md. Sadeq & another
……………….....Respondents
 
Judgment
March 6, 1986
 
The Local Government (Union Parishad) Rules, 1953
Rule 49
Re-counting of ballot papers.
A Tribunal ordering fresh election in one centre without declaring result of the election void, is illegal……(8)
Recounting of the ballot papers by a Tribunal long after the election should ordinarily be resorted to simply on mere asking by an interested party. Ballot papers have special sanctify of their own and their secrecy should not be infringed by reopening the sealed packet unless the recounting beco­mes indispensably necessary to determine the dispute. Recounting should be refused if no prayer for recounting had been made to the Presiding Officer who is alone empowered to recount on the spot either on his own motion or on the requests of any candidate......(13)
 
Cases Referred to-
Mofazzal Hossain Vs. Election Commissioner, (1976) 28 DLR (AD) 51; Nurul Islam V. Munsif. Election Tribunal 28 DLR (Dhaka) 375.
 
Lawyers Involved:
Syed Ishtiaq Ahmed, Senior Advocate, (Mahmudul Islam, Advocate with him), instructed by Kazi Ebadul Haque, Advocate-on-Record—For the Appellant.
Dr. Kamal Hossain, Senior Advocate, (S. S. Halder, Advocate with him), instructed by Ranesh Chandra Maitra, Advocate-on-Record—For the Respon­dent No. 1.
 
Civil Appeal No. 2 of 1986
(From the judgment and order dated 16-7-1985 passed by the High Court Division, Comilla bench, in Civil Revision No. 102 of 1985.)
 
JUDGMENT
 
Shahabuddin Ahmed J.
 
1. Appellant before is a defeated candidate for election to the office of Chairman of Yakubpur Union Parishad in the district of Feni. The election was held on 28 December 1983 end respondent No. 1 was declared elected by the Returning Officer with a small majority of 17 votes (2326—2309=17). The appellant challenged the election by an election Petition under the Local Government (Union Parishad) Ordinance, 1983, before the Munsif-cum-Election Tribunal, Daganbhuian, bringing a number of allegations which related to the election held in one of the three Polling Stations, namely Dudmukha High School Centre, the election held in the other two Polling Stations remaining unchallenged. The allegations were that the returned candidate, respondent No.1, had adopted unfair means, such as, he had influenced the Presiding Officer who rejected some of his valid votes as invalid and accepted some invalid votes of the returned candidate as valid votes, that votes of some dead and absentee voter were cast in the election and that the Presiding Officer at first declared a result which showed him (appellant) the winner, but later on, submitted a different result to the Returning Officer and consequently he was defeated in the election. To be specific on this point, his allegation was that he had obtained 498 votes and the respondent had obtained 1100 votes, but in his report to the Returning Officer the Presi­ding Officer stated that the appellant got 444 votes and the respondent got 1135 voter.
 
2. The Tribunal after hearing the patties and considering the evidence adduced by them rejected all the allegations as baseless excep­ting the allegation as to the actual counting of votes by the Presiding-Officer. The Tribu­nal recounted the ballot-papers in presence of the patties. The Tribunal did not find any truth in the allegation that the appellant bed got 498 votes as against 1100 votes of the returned candidate, but found the numerical counting of the Presiding-officer correct. But from 444 votes of the appellant the Tribunal rejected one vote as invalid, and from 1135 votes of the returned candidate the Tribunal rejected 68 votes as invalid on the common ground of ''double marks". With such rejec­tion of 69 votes the appellant's over-all total came to 2308 and that of the respondent was reduced to 2256. That is, the appellant got 52 votes more than the returned candidate.
 
3. The Tribunal, however, did not declare the appellant elected in spite of his majority of 52 votes, but declared the election held in this Polling Station 'void' and directed a fresh election there keeping undisturbed the results of the two other Polling Stations 10 that those result could be added to the result to be obtained from the fresh election in the disputed Polling Station for final determination of the question at to election of Chairman of the Union Parishad.
 
4. This order of the Tribunal was challen­ged by both the parties by two separate appeals before tin Election Appellate Tribunal (District Judge). This appellant in his appeal, Ap­peal No.3 of 1984, contended that in view of his majority of 52 votes, the Tribunal ought to have declared him elected. The respon­dent, on the other hand, in his Appeal No. 4 of 1984, challenged the re-counting which was, according to him, based on arbitrary and illegal rejection of his 68 votes which were found perfectly valid on the spot by the Presiding Officer in presence of both the parties. The Appellate Tribunal did sol consider the pro­priety of the 'recounting', but decided the appeals on a different ground. It was that the 'M' Form relating to ballot-paper account was not prepared by the Presiding officer and submitted by him to the Returning Officer though the provision for preparation and sub­mission of 'M' Form was mandatory under the Election Rules. The Appellate Tribunal held that the 4M Form was not submitted to the Returning Officer by the Presiding Officer who thereby contravened the mandatory pro­vision in rule 40 of the Election Rules, 1983, and concluded that Independent of any other questions, contravention of the mandatory provision as to Form 'M’ vitiated the election and on that ground maintained the Tribunal's order for re-election in the disputed centre and dismissed both the appeals.
 
5. This appellate order was challenged by the appellant before the High Court Division by an application under section 115 of the Civil Procedure Code. The learned Single Judge of the High Court Division having heard both the parties came to certain findings which are summarized below:
 
The partial reflection as directed by the Tribunal is not sustainable in law as elec­tion of the returned candidate as chairman of the Union Parishad was also not declared void and set aside. (The Tri­bunal, it may be mentioned, though-declared the election of the disputed Centre 'void’ did not declare the election of the returned candidate void as a whole, but maintained it). The order for fresh election in one of the three centers is contradictory in term in that there cannot be election in one pail of the Union so long the returned candi­date election as Chairman for the whole of the Union has been upheld. There is no definite and clear finding by the Tribunal that there was any diver­gence between the result declared by the presiding-officer on the spot and that he submitted to the Returning- officer. There is no basis for the Appellate Tribunal's findings that the 'M' Form was not prepared and submitted to the Returning-officer, by the Presiding-officer in that the Tribunal own order in the Order-sheet showed that 'M’ Form had been submitted by the Presiding-officer to the Returning-officer in a se­parate packet which was contained, along with other packets, in the gunny bag.
 
The learned Single Judge, on these findings and also reviving upon rule 49 which provides that the Tribunal shall not declare the elec­tion of a retained candidate void unless it ii satisfied that the result of the election has been materially affected, set aside tee order as to fresh election and dismissed the elec­tion petition with the result that the election of the returned candidate was finally upheld.
 
6. Leave was granted to consider whether the learned Single Judge, of the High Court Division, while setting aside the Tribunal's order for fresh election in one of the three Centers, correctly appreciated our decision in the case of Mofazzal Hossain Vs. Election Commissioner, (1976) 28 DLR (AD) 51 and rightly applied the. Principle enunciated therein to the instant case.
 
7. To appreciate the real question invol­ved is this appeal a brief review of the facts relating to election of the disputed Centre is necessary. As has been stated above, contest between the two candidates was narrowed down to the question of recounting of the ballot-papers only, all other allegations broug­ht by the appellant having fallen through. It was found by the Tribunal, and we find correctly, that the election was held peace­fully in a very congenial atmosphere and that the counting of votes by the Presiding Officer was also held in a peaceful manner. The question Therefore, is whether the counting was correct end valid, valid In-the sense that only valid votes were included and invalid votes were rejected and further that the rejec­tion of the 69 ballot-papers as "invalid" was made according to law. Report of the Presiding-officer submitted to the Returning-officer chows the following result of the counting:
 
Appellant 444
     
Respondent 1135
Invalid votes 41
Total: 1620
     
 
But according to the allegation of the appel­lant made in his election-petition the result initially declared by the Presiding Officer is:
 
Appellant 498
     
Respondent 1100
Invalid 22
Total: 162
 
 
 
 
 
 
On re-counting the Tribunal found the following:
 
Appellant 443
Respondent 1065
Invalid (original) 41
Invalid (declared by the Tribunal) 69
Challenged votes 2
Totals:   16.0
 
 
8. It should be noted that the total num­ber of ballot-papers used in this centre, both valid and invalid, was 1620 in all the three stages as shown above. The allegation of the appellant that he had got 498 votes and the respondent had got 1100-was not found cor­rect by the Tribunal for, the Tribunal also found the appellant's votes to be 444 from wh­ich however the Tribunal rejected one on the ground of "double-marks". The Tribunal also found 1135 votes for the respondent but from this figure the Tribunal rejected 68 votes on the ground of 'double-marks’; all other things and figures were found intact. Thai is, so far as the numerical counting conce­rned, the Presiding Officer's figure perfectly tallies with the figure found by the Tribunal on recounting in presence of the parties, Now, if 68 votes of the respondent which had been found valid by the Providing Officer on the spot were rightly rejected as invalid by the Tribunal then the result of the election in this Centre was materially affected and conse­quently, the whole of the Chairman's election was also materially affected; and in that case election of the returned candidate must be declared void. Fresh election may however be held only in the disputed Centre. The Tribunal though ordered fresh election in the disputed Centre did not declare election of the returned candidate void but kept it intact. This is clearly illegal.
 
9. Mr. Ishtiaque Ahmed, learned Advocate for the appellant, has tried to convince us that it is a mere omission on the part of the Election Tribunal to declare election of the Chairman void and that at best it if an irregu­larity which may be corrected even at this stage. Had it been a users omission in the Tribunal's judgment the omission could have been supplied and election of the respondent could have been set aside by us maintaining the Tribunal's order for re-election in the disputed Centre. It is to be seen whether it is a mere omission all the part of the Tribu­nal The Tribunal gave serious consideration to the question whether rte election of the returned candidate should or should not be set aside and recorded its reason for not setting aside the respondent's election hot for maintaining It, The reason was that the Tribunal was not sure whether the "double marks" on the 68 ballot-papers of the respon­dent were post-election manipulations or were in existence al the lime of counting of those ballot-papers by the Presiding Officer en the spot. If these were post-election manipula­tions, that is, after dispatch of the ballot-papers by the Presiding-officer and before the recounting by the Tribunal after a time gap of about 9 months, then the returned candid­ate could not be saddled with its responsibility and the rejection of these votes would be wholly illegal and improper Bui if those double marks were there from before, that is. Those markings had been made by the respective voters, out of ignorance or for some other reasons, then their rejection by the Tribunal would be perfectly justified and she order for re-election must be upheld. So it should be seen how the Tribunal dealt with this question which is the only point for consideration in this appeal, and for that purpose, in the whole of the election petition.
 
10. The Tribunal has considered three probable reasons for the "double marks". One is that the double marks were there in the ballot-papers at the time of the counting by the Presiding-officer, but these ballot-papers' though invalid, were dishonestly accepted as valid by the Presiding-officer or Ms Assistants ; or due to inexperience and inefficiency on the part of these officers these ballot-papers were counted in favour of the respondent; or there were no such double-marks but these were acts of malicious bands for the purpose of tempering with the otherwise valid ballot-papers of the respondent done after they were sent out by the Presiding Officer. It is therefore clear that the Tribunal itself could not come to any definite finding whether these "double markings' were made by the respective voters while casting votes or were post-election acts or some other persons. In view of this position, neither the election of the returned candidate hat been declared void nor has the appellant been declared elec­ted in place of the returned candidate though he was found by the Tribunal to have obtai­ned 52 vote more than his opponent. The Tribunal, as appears from its elaborate judg­ment considered this point and directed fresh election in this Centre 'in the Interest of justice’. It is in view of this position that we find that the omission to declare the respon­dent's election ‘void' is not a mere omission in the judgment of the Tribunal but we find that It is dug to the fact the Tribunal was it­self not satisfied that the double markings on the 68 ballot papers of the returned candidate were in existence at the time of the counting by the Presiding officer.
 
11. Dr. Kamal Hossain, learned Advo­cate for the respondent, has submitted that the appellant in his election petition did not make any prayer for recounting the ballot-papers and that after about two months he filed an application for amending the election-petition so as to include therein a prayer for recounting the ballot-papers. The learned Counsel has also referred to a G.D Entry in this connection made by the respondent to the Police on 29-3-84 to the effect that he was apprehending that election materials, particu­larly the ballot-papers, which were in the cus­tody of the Returning Officer, might be tam­pered with at the instance of his opponent. It appears that the election-petition was filed on 8-2-84, a G.D. Entry as referred to was made on 29-3-84, a petition for amendment of the election-petition for the purpose of re-cou­nting was made on 21-4-84 and that the ballot-papers were recounted by the Tribunal on 28-9-84, Mr, Ishtiaque Ahmed explain that the petition for recounting is a mere formality the allegation of improper counting by the Presiding Officer was specifically made in the election petition but the prayer for recounting was made as it was implied in the petition and that immediately after the election appellant had sent an application to the election Commissioner for arranging recounting of the ballot papers.
 
12. It appears that all election mate were dispatched In sealed packets by the siding Officer on the same night following December 1983 immediately after the counting was completed, and that from that time the recounting was held, after about 9 month the respondent or the Presiding Officer had connection with the ballot-papers. If during this period the “double marks" had been on the ballot papers, as the Tribunal itself suspected, rejection of those 68 ballot-paper will be clearly unwarranted and improper. Rejection of their ballot-papers will be proper only if it is proved that the doable-marks were pre-counting acts of the voters themselves. Now, in this case, is there any scope to h that the 'double marks' were in existence the time of counting of votes by the Presiding Officer 'Doable marks', as has been explanted by the Tribunal, mean marks made more than one space in a ballot-paper ea space being earmarked for only one Candida "Double marks' Indicating a vote for more than one candidate where only one candidate is to be elected is such a glaring defect that cannot escape notice of the parties their representatives in whose presence ballot-papers are counted. Had 68 ballot-papers bearing 'double marks' been counted in favour of the respondent the election age of the appellant would have certainly raised objection. Secondly, the 'allegation' would have been taken as a specific ground by the appellant in his election petition in which a number of vague and baseless allegations were made. The Presiding Officer, O.P.W 8, while deposing before the Tribunal stated that he had counted the ballot paper thrice for hit satisfaction as to correct counting.
 
13. In Election cases, it is often found that a defeated candidate brings a number of allegations including vague charges of his opponent influencing the Presiding Officer, but ultimately fails to prove, or abandons, all the allegations and institution only recounting of the ballot-papers. On rec­ounting, it is found that the remit hat gone in his favour by tome mysterious means. That is why recounting of the ballot' papers by a Tribunal long after the election should not be resorted to simply on mere asking by an interested party. Ballot papers have special sanctify of their own and their secrecy should not be infringed by reopening the sealed packet unless the recounting beco­mes indispensably necessary to determine the dispute. When recounting would become so necessary depends on circumstances in each case. In the absence of clear Justifications, no recounting should be ordered or made some finality most attach to counting of votes. Ground work for recounting must be prepared; recounting should be refused if no prayer for recounting had been made to the Presiding Officer who is alone empowered to recount on the spot either on hi§ own motion or on requests of any candidate. Recounting of ballot-paper by the Tribunal is not speci­fically provided in the Election Rules, but it falls within the Inherent powers of the Tribunal to decide the election dispute. In the instant case, the appellant or his represent­ative did not request the Presiding Officer for recounting the ballot-papers. The Tribunal found that the election was held and the ballot-papers were counted in an orderly manner all through and no objection was raised on the spot before the Presiding Officer as to the counting of the ballot papers. In the circumstance, the learned Single Judge rightly rolled upon the decision in the case of Nurul Islam V. Munsif. Election Tribunal 28 DLR (Dhaka) 375.
 
In that decision it was ob­served, among other things, that a ballot-box containing ballot-papers must be regarded as a sacred thing whose secrecy should not be disturbed on a mere prayer of a defeated can­didate when he has failed to prove any of its allegations of real-practices against his opponent or the election officials. In the instant case when the Tribunal itself was not in a position to say whether the double marks were post-election acts or were the doings of the respective voters, election of the returned candidate should not have been interfered with. It is not a case of benefit of doubt going to a defeated candidate feeling aggrieved like the accused in a criminal case. Hers, presumption is in favour of the returned candidate whose election shall not be declared a nullity unless the Tri­bunal "is satisfied" as laid down in rule 49 that the election has been materially affected by some illegal acts or contravention of some rules.
 
14. In the result, we find so reason to interfere with the High Court Division's order reversing the Tribunal's order and dismissing the election-petition. The appeal is, accordingly, dismissed without any order as to costs.
 
Ed.