Md. Toufiqul Islam Toufiq Vs. Government of Bangladesh & ors., 2018(1) LNJ 119

Case No: Civil Revision No. 223 of 2017

Judge: Mohammad Ullah, J.

Court: High Court Division,

Advocate: Mr. Mazedul Islam Patwary, Advocate, Mr. Shahdeen Malik,

Citation: 2018(1) LNJ 119

Case Year: 2017

Appellant: Md. Toufiqul Islam Toufiq

Respondent: The Government of People’s Republic of Bangladesh and 11 (eleven) others

Subject: Local Government (Union Parishad) Ain & Local Government Election Commission Rules, 2010

Delivery Date: 2018-05-30

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Quazi Reza-Ul Hoque, J

And

Mohammad Ullah, J

Judgment on

29.10.2017

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Md. Toufiqul Islam Toufiq

...Petitioner

-Versus-

The Government of People’s Republic of Bangladesh and 11 (eleven) others

...Respondents

Local Government (Union Parishad) Ain (LXI of 2009)

Sections 19 to 22

Local Government Election Commission Rules, 2010

Rules 43 and 90

The election commission in exercise of power under rule 90 of the Rules of 2010 have had no authority to act upon any complain after the poll. Any such allegations after declaration of result unofficially by the returning officer being election dispute has to be resolved by the election tribunal on a competent election petition. The election commission was under legal obligation to publish the result in official gazette under section 21 of the Act read with rule 43 of the rules declaring the petitioner officially elected chairman of number 13, Kamardaho Union Parishad instead of sending the dispute to an inquiry officer. The election commission acted illegally and arbitrarily in taking decision to hold re-election at Tardaho Government Primary School center upon cancelling the unofficial result.                                                          . . .(18)

Mhmudul Haque (Md.) Vs. Hedayetullah and others, 48 DLR (AD) 128; Ataur Rahman Vs. Election Commission, 15 BLC (HCD) 506,Abul Basher (Md.) vs. Kamrul Hasan and others, 3 BLC (AD) 229 and A.F.M.Shah Alam Vs. Mujibul Huq and others, 41 DLR (AD) 68 ref.

Mr. Mazedul Islam Patwary, Advocate

...For the petitioner

Mr. Shahdeen Malik with

Mr. Monjur Alam and

Mr. M. Ataul Gani, Advocates

…For the respondents No. 12

JUDGMENT

Mohammad Ullah, J: On an application under Article 102 of the Constitution, the Rule Nisi was issued calling upon the respondent No. 2, the Election Commission to  show cause as to why the letter being Memo No. 17.00.0000.079.41.050.16-01 dated 02.01.2017 signed by the respondent No. 11, Assistant Secretary, Election Management and Co-ordination-2, Election Commission cancelling the result of Tardaho Government Primary School Center of Number 13, Kamardaho Union Parishad Election, Gobindaganj, Gaibandha and taking decision to re-poll of the same should not be declared to have been issued without lawful authority and of no legal effect and/or why pass such other or further order or orders should not be passed as to this Court may seem fit and proper.

2.            At the same time, by the Rule issuing order dated 08.01.2017 the impugned decision of cancellation of result of Tardaho Government Primary School Center of number 13, Kamardaho Union Parishad Election, Gobindaganj, Gaibandha was stayed for a period of 6(six) months and the respondent No. 2, the Election Commission was directed to publish the name of the petitioner as elected Chairman in the Official Gazette within 15 (fifteen) days of receipt of the order. The defeated candidate Syed Shariful Islam got himself added as respondent No. 12 in the writ petition who moved the Appellate Division upon filing Civil Miscellaneous Petition For Leave to Appeal No. 309 of 2017 seeking an order of stay of the interim order dated 08.01.2017 passed by this Division.

3.            The Honourable Judge in Chamber of the Appellate Division did not interfere into the interim order of stay as have been passed by this Court.

4.            However, the added respondent No. 12 preferred Civil Petition For Leave to Appeal No. 603 of 2017 wherein upon hearing both of the parties, the Appellate Division on 19.02.2017 stayed the interim order dated 08.01.2017 with regard to the order of stay passed by this Division. Since the direction given by this Court upon the respondent No. 2 with regard to publication of the Gazette notification in the Official Gazette was not stayed by the Appellate Division the name of the petitioner was published in the Official Gazette as elected Chairman of number 13, Kamardaho Union Parishad, Gobindaganj, Gaibandha. Thereafter, the petitioner filed an application seeking a direction upon the respondents No. 2 and 4 for administering oath to office as elected Chairman of the said Union Parishad wherein this Court by the order dated 06.04.2017 directed the concern authorities to accord oath within 15 (fifteen) days from the date of receipt of the order.

5.            Being aggrieved by and dissatisfied with the order of direction dated 06.04.2017, passed by this Court, the respondent No. 12 defeated candidate filed Civil Petition For Leave to Appeal No. 1608 of 2017 before the Appellate Division. The Appellate Division by order dated 21.05.2017 stayed the direction dated 06.04.2017 passed by this Court with regard to solemnization of oath to the petitioner with a direction to dispose of the Rule.

6.            The facts for disposal of the Rule as has been stated in the writ petition, in short, are that according to the provisions of ÙÛ¡e£u plL¡l (CE¢eue f¢loc) BCe, 2009 (hereinafter referred to as “the Ain”) the election schedule of Number 13, Kamardaho Union Parishad under Gobindaganj Police Station, Gaibandha was declared and the date of election was fixed on 28.05.2016. The petitioner participated in the said Union Parishad Election as the Chairman candidate who duly submitted nomination paper to the respondent No. 9 and he was assigned Motorcycle symbol. It has been stated in the petition that the election was held on 28.05.2016 except postponed Tardaho Government Primary School center out of 9 (nine) centers and the result was published with regard to 8 (eight) centers on the same day by the Returning Officer declaring the total votes of the petitioner was 7191 and the nearest candidate’s votes was 6673. Subsequently election of postponed center namely Tardaho Government Primary School was held on 31.10.2016 wherein the petitioner secured total 7191+848= 8039 votes and the added respondent No. 12 got 6673+1344=8017 votes and on the same day the returning officer declared the name of the petitioner as elected Chairman of the concerned Union Parishad. The defeated candidate respondent No. 12 made a representation to the respondent No. 2 on 08.11.2016 with certain allegations of illegalities in holding election of Tardaho Government Primary School center praying for re-election.

7.            The respondent No. 2, Election Commission on the basis of the allegations of the respondent No. 12 appointed the respondent No. 5 for enquiry into the allegations who submitted a report to the Election Commission on 05.12.2016 recommending certain irregularities in conducting election including votes of 36 (thirty six) dead persons. On the other hand the petitioner by a letter dated 20.12.2016 requested the Election Commission to take necessary steps for publishing the result of the election in the Official Gazette. When the respondent No. 2, Election Commission kept silent inexplicably the petitioner approached this Court and obtained the Rule and order of stay and direction as stated above.

8.            Mr. Mazedul Islam Patwary, learned Advocate appearing for the petitioner having placed the Ain and the Rules framed for the purpose of holding Local Government Election submits that the Election Commission had no authority to constitute inquiry committee and the report of inquiry officer is contrary to the provisions of the Ain particularly sections 20, 21, 22 read with rule 90 of the Rules.

9.            The learned Advocate next submits that no allegation of corrupt practices or irregularities were made by any candidates including the respondent No. 12 during the polling hours on the day of election on 31.10.2016 neither to the presiding officer, nor to the returning officer or any disturbance was reported with regard to holding election of the Taradaho Government Primary School Center. When the petitioner was declared unofficially as Chairman of the Union Parishad concern, the Election Commission has no option but to publish the name of the petitioner in the Official Gazette under the provisions of section 21 of the Act read with rule 43 of the Rules and therefore the impugned decision of cancellation of the election result of Tardaho Government Primary School Center and direction of re-polls are liable to be declared to have been done without lawful authority and of no legal effect.

10.        The learned Advocate lastly submits that any allegation after declaration of result unofficially by the Returning Officer being election dispute has to be resolved by the Election Tribunal on election petition.

11.        In support of his contentions the learned Advocate referred to the observation made in the case of Altaf Hussain Vs. Abul Kashem and others heard and disposed of with certain other cases reported in 45 DLR (AD) (1993)53.

12.        In controverting the submissions of the learned Advocate of the petitioner, Dr. Shahdeen Malik, learned Advocate appearing for the added respondent No. 12 submits that the Election Commission on receipt of a written allegation dated 08.11.2016 filed by the respondent No. 12 about irregularities and malpractices of conducting election, appointed the respondent No. 5 to investigate into the dispute, wherein it has been shown that a series of irregularities were committed in conducting the election including casting votes of 36 dead persons therefore the Election Commission rightly cancelled the result of the disputed center and directed re-polling.

13.        Dr. Shahdeen Malik submits further that the Election Commission established under Article 118 of the Constitution, is vested with the plenary, supervisory and discretionary power and jurisdiction to conduct the election justly, fairly and in accordance with the Local Government Election Act and Rules.

14.        Having drawn our attention to rule 90 of the Rules, Dr. Malik next submits that law provides for certain plenary and supervisory power to the Election Commission and on exercise of that power the commission cancelled the election result of Tardaho Government Primary School Center and took decision to re-polling of the same.

15.        The learned Advocate seeks to rely on the decisions in the cases of Mahmudul Haque(Md.) Vs. Hedayetullah reported in 48 DLR (AD)128, Ataur Rahman Vs. Election Commission represented by the Secretary and others reported in 15 BLC (HCD) 506, Abul Basher (Md) Vs. Kamrul Hasan and others report in 3 BLC(AD)229 and A.F.M. Shah Alam Vs. Mujibul Huq and others reported in 41 DLR (AD)68.

16.        We have heard the submissions of both the parties and perused the materials on record including the decisions as referred to.

17.        Before addressing the factual matter or entering into therein let us examine the relevant provisions of Act and the Rules framed for the purpose of holding Local Government Election. Under Chapters 4 and 5 sections 19, 20, 21, 22 of the Act read with rule 90 of the Rules incorporated under Chapter 6 of the Rules are relevant for our purpose and the said provisions of law are quoted bellow for ready reference:

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(L) h¡wm¡­®c­®nl HLSe e¡N¢lL qe;

(M) BW¡­®l¡ hvp­®ll Lj huú e­®qe;

(N) ®L¡e Efk¤š² Bc¡ma LaѪL AfËL«¢aÙÛ h¢mu¡ ®O¡¢oa e­®qe;

(O) pw¢ø Ju¡­®XÑl A¢dh¡p£ h¡ A¢dh¡p£ h¢mu¡ NZÉ qez

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20z ¢ehÑ¡Qe f¢lQ¡me¡, CaÉ¡¢c z-(1) ¢ehÑ¡Qe 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¢d­®a ¢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¡b£Ñ­cl j­®e¡eue, j­®e¡eu­®el ®r­®œ Bf¢š Hhw j®­e¡euefœ h¡R¡C;

(N) fË¡b£Ñ LaѪL fËcš S¡j¡ea NËqZ Hhw Eš² S¡j¡ea ®gla fËc¡e h¡ h¡­®Su¡ç LlZ;

(O) fË¡b£Ña¡ fËaÉ¡q¡l J fËa£L hl¡Ÿ;

(P) fË¡b£Ñ­cl H­®S¾V ¢e­®u¡N;

(Q) fË¢aࢾcÄa¡ J ¢he¡ fË¢aࢾcÄa¡l ®r­®œ ¢ehÑ¡Qe fÜ¢a;

(R)) ®i¡V NËq­®Zl a¡¢lM, pju, ÙÛ¡e Hhw ¢ehÑ¡Qe f¢lQ¡me¡ pwœ²¡¿¹ AeÉ¡eÉ ¢hou;

(S) ®i¡Vc¡e fÜ¢a;

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

(U) hÉ¡mV ®ff¡l J ¢ehÑ¡Qe pwœ²¡¿¹ AeÉ¡eÉ L¡NSf­®œl ®qg¡Sa J ¢h¢m h¾Ve;

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

(W) fË¡b£Ñ­®cl ¢ehÑ¡Qe£ hÉu Hhw HacÚpwœ²¡¿¹ k¡ha£u ¢hou;

(X) ¢ehÑ¡Q­®e c¤e£Ñ¢aj§mL h¡ A®~hd L¡kÑLm¡f Hhw AeÉ¡eÉ ¢ehÑ¡Qe£ Afl¡d Eq¡l cä Hhw fË¢aࢾcÄ fË¡b£Ñ­®cl BQlZ J BQlZ ¢h¢d iw­®Nl cä;

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

(Z) Afl¡d ¢hQ¡l¡®­bÑ NËqZ, jÉ¡¢S®­øÊ­®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¡m®el BCe fË­®u¡NL¡l£ pwÙÛ¡l pcpÉ­®cl ®NËga¡l Ll¡l rja¡; Hhw

(b) ¢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 10,000 (cn q¡S¡l) V¡L¡ AbÑc®ä h¡ Eiuc­®ä c¢äa qC­®he;

(M) ¢ehÑ¡Qe£ Afl¡d L¢l­m ¢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¡c®ä Abh¡ Ae¢dL 10 (cn q¡S¡l) V¡L¡ AbÑc®ä Abh¡ Eiu c­®ä c¢äa qC­®hez

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®S­V fËL¡n L¢l­®hz

22z ¢ehÑ¡Qe£ clM¡Ù¹ c¡¢Mm z-(1) HC BC­®el Ad£­e Ae¤¢ùa ®L¡e ¢ehÑ¡Qe h¡ Nªq£a ¢ehÑ¡Qe£ L¡kÑœ²j ¢ho­®u ¢ehÑ¡Qe VÊ¡Ch¤Ée¡m hÉa£a ®L¡e Bc¡ma h¡ AeÉ ­®L¡e LaѪf­®rl ¢eLV Bf¢š E›¡fe Ll¡ k¡C­®h e¡z

(2) ®L¡e ¢ehÑ¡Q®­el fË¡b£Ñ hÉa£a AeÉ ®L¡e h¡¢š² Eš² ¢ehÑ¡Qe h¡ ¢ehÑ¡Qe£ L¡kÑœ²j ¢ho­u Bf¢š E›¡fe J fË¢aL¡l fË¡bÑe¡ L¢lu¡ ¢ehÑ¡Qe VÊ¡Ch¤Ée¡­m B­hce L¢l­®a f¡¢l­®he e¡z

(3) HC BC­®el d¡l¡ 23 Hl Ad£e N¢Wa ¢ehÑ¡Qe VÊ¡Ch¤Ée¡­®ml hl¡h­l ¢edÑ¡¢la fÜ¢a­®a ¢ehÑ¡Qe£ A¢i­®k¡Nfœ ®fn L¢l­®a qC­®hz

(4) ®L¡e Bc¡ma-

(L) f¢lo­®cl ®L¡e ®Qu¡ljÉ¡e h¡ pc­®pÉl ¢ehÑ¡Qe j¤mah£ l¡¢M­®a;

(M) HC BCe Ae¤k¡u£ ¢ehÑ¡¢Qa ®L¡e f¢lo®cl ®Qu¡ljÉ¡e h¡ pcpÉ­®L ay¡q¡l c¡¢uaÄ NËq®­Z ¢hla l¡¢M­®a;

(N) HC BCe Ae¤k¡u£ ¢ehÑ¡¢Qa ®L¡e f¢lo®cl ®Qu¡ljÉ¡e h¡ pcpÉ­®L ay¡q¡l L¡kÑ¡m­®u fË­®hn Ll¡ qC­®a ¢hla l¡¢M­®a-

¢e­od¡‘¡ S¡¢l L¢l­®a f¡¢l­®h e¡z

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®el ¢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¢l­a 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¢aÑ hÉ¡mV h¡„ ¢Rea¡C, ®S¡lf§hÑL A­®eÉl ®i¡VfËc¡e, Q¡f pª¢øpq ¢h¢d h¢qiѧa ¢h¢iæ AfL­®jÑl L¡l­®Z h¡ Eq¡l ¢h­®hQe¡u AeÉ ®k ®L¡e L¡l­®Z eÉ¡upwNa J ¢el­®fri¡­®h Hhw BCe Ae¤k¡u£ ¢ehÑ¡Qe f¢lQ¡me¡ Ll­®a prj qC­®h e¡;

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

18.        On a combined reading of sections 20-22 of the Act it appears that section 20 relates to holding election of the Local Government Election. Under the provisions of section 21 Election Commission shall as soon as possible after holding election publish result thereof in the Official Gazette. After holding election all sorts of allegations about conducting or holding election or casting votes shall not be placed to any court or any authority except to the Election Tribunal to be framed under section 23 of the Act. Section 22 of the Act speaks about unilateral power and jurisdiction of the Election Tribunal wherein it has been stipulated that- ­®L¡e ¢ehÑ¡Qe h¡ Nªq£a ¢ehÑ¡Qe£ L¡kÑœ²j ¢ho­®u ¢ehÑ¡Qe VÊ¡Ch¤Ée¡m hÉa£a ®L¡e Bc¡ma h¡ AeÉ ­L¡e LaѪf­rl ¢eLV Bf¢š Ev›¡fe Ll¡ k¡C­®h e¡ (underlined by us)z The words “¢ehÑ¡Qe h¡ Nªq£a ¢ehÑ¡Qe£ L¡kÑœ²j” indicates the process of conclusion of polls. It means when Returning Officer declares unofficial result of an election only then the election process would be accepted and any dispute about polls or casting votes etc. is to be raised only to the Election Tribunal who can examine the same in due process of law. There is no doubt that the Election Commission has plenary and supervisory power under rule 90 of the Rules to ensure a free, fair, independent and transparent election. This power of the Election Commission as appearing in rule 90 of the Rules is exercisable during the polling hours only. These are the specific and mandatory provisions of law for the Local Government Election. In the instant case the Presiding Officer did not raise any allegation about disturbance of poll nor any person or candidate complained to the Presiding Officer about any irregularity of conducting election or casting vote.     So after holding election and casting vote the Presiding Officer of the disputed center after counting the ballots prepared the result wherein it has been shown that 848 votes were cast in favour of the petitioner while 1344 votes in favour of his nearest candidate Syed Shariful Islam, respondent No. 12, 13 votes in favour of S.M. Altaf Hossain, 10 votes in favour of Md. Shafiqul Islam and 15 votes were invalid who sent the same to the Returning Officer. Thereby total 2265 votes were cast out of total 2280 votes in Tardaho Government Primary School Center. The Returning Officer on receipt of the result sheet from the Presiding Officer from all 9 (nine) centers including Tardaho Government Primary School Center consolating the results prepared the unofficial result sheet on 31.10.2016 wherefrom it appears that 8039 votes were cast in favour of the petitioner while 8017 votes in favour of his nearest candidate Syed Shariful Islam  (the respondent No. 12), 2169 votes in favour of S.M. Altaf Hossain and 107 votes in favour of Shafiqul Islam and declared the petitioner unofficially elected as the Chairman of Number 13, Kamardaho Union Parishad and sent the same to the Election Commission in glj-X for publication in the Official Gazette under the provisions of rule 43 of the Rules, 2010. The defeated candidate Syed Shariful Islam, added respondent No. 12 made a complain on 08.11.2016 i.e. after 7 days of declaring the petitioner as the elected Chairman unofficially by the Returning Officer. Since neither any allegation of irregularity, nor any corrupt practices were brought in the polling hours either to the Presiding Officer, or to the Returning Officer by any of the candidates or any voters nor any disturbance during polling hours were reported, the Election Commission in exercise of power under rule 90 of the Rules have had no authority to act upon any complain after the poll. Any such allegations after declaration of result unofficially by the Returning Officer being election dispute has to be resolved by the Election Tribunal on a competent election petition. The Election Commission was under legal obligation to publish the result in the Official Gazette under section 21 of the Act read with rule 43 of the Rules declaring the petitioner officially elected Chairman of Number 13, Kamardaho Union Parishad instead of sending the dispute to an inquiry officer. The Election Commission acted illegally and arbitrarily in taking decision to hold re-election at Tardaho Government Primary School Center upon cancelling the unofficial result.

19.        With regard to 36 dead voters as found by the inquiry officer it is to be noted here that the Election Commission itself prepared the voter list and an officer of the said commission later  discovered that there were 36 dead persons those who to have casted their votes.  The Election Commission cannot blow hot and cold at the same time.  However this allegation should be adjudicated by the Election Tribunal since it is a serious disputed question of fact that cannot be resolved in the writ jurisdiction in a summary proceeding.

20.        Since allegations of irregularities in holding election, casting votes, etc has been raised at the instance of the defeated candidate, we are of the view that the election dispute after publishing the result unofficially and publication of Gazette of the election result has to be examined by the Election Tribunal. With regard to the decisions as referred to by the learned Advocate for the petitioner, we find the same are not applicable in the present facts and circumstances of the case and as such those are not discussed.

21.        Having heard the materials on record, we find merit in the Rule.

22.        In the result, the Rule is made absolute.

23.        The impugned decision of the respondent No. 2, Election Commission cancelling the result of Tardaho Government Primary School Center of Number 13, Kamardaho Union Parishad Election, Gobindaganj, Gaibandha is hereby declared to have been taken without lawful authority and is of no legal effect.

24.                   The respondent, Election Commission is directed to take appropriate steps to administer oath to the petitioner in accordance with law expeditiously.

Ed.



Civil Revision No. 223 of 2017