Moulana Delwar Hosain Saydee Vs. Sudhangshu Shekhor Halder and others, 52 DLR (AD) (2000) 20

Case No: Civil Appeal Nos. 11 and 12 of 1999

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Rafique-ul-Huq,,

Citation: 52 DLR (AD) (2000) 20

Case Year: 2000

Appellant: Moulana Delwar Hosain Saydee

Respondent: Sudhangshu Shekhor Halder

Subject: Election Matter,

Delivery Date: 1999-8-26

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Mustafa Kamal CJ
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J
AM Mahmudur Rahman J
Mahmudul Amin Choudhury J
 
Moulana Delwar Hosain Saydee
………………. Appellant
Vs.
Sudhangshu Shekhor Halder and others
………………. Respondent
 
Judgment
August 26, 1999.
 
The Representation of People’s Order, 1972 (President’s Order No. 155 of 1972)
Article 31(2) (d) (e)
A ballot paper is to be stamped on its back with full official mark and counterfoil is also to be stamped accordingly but during rush that follows a brisk polling it may not be possible to follow the same in full in letter and spirit and may have to opt for satisfying such requirements in substance by putting official mark on the back of the ballot paper leaving a part on the counterfoil. If a ballot paper does not contain any official mark it is excluded from counting…………………(44)
 
The Representation of People’s Order, 1972 (President’s Order No.  155 of 1972)
Article 36
The ballot papers that are required to be excluded from the counting are fully described in Article 36(4) (i)-(iv) of the Order. A ballot paper not containing the code number or the signature or initial of the Assistant Presiding Officer shall not cause the ballot paper to be excluded from counting. The High Court Division acted without jurisdiction in excluding the ballot papers for such omission. …………………….(45)
 
Lawyers Involved:
Khandaker Mahbubuddin Ahmed, Senior Advocate, (Moudud Ahmed, Senior Advocate and Abdur Razzaque, Advocate with him), instructed by Md. Nawab Ali, Advocate-on-Record — For the Appellant (In both the Appeals).
Rafique-ul-Huq, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record— For Respondent No. 1 (In both the Appeals).
Not represented— Respondent No. 2-19 (In both the Appeals).
 
Civil Appeal Nos. 11 & 12 of 1999.
(From the Judgment and order dated 6 & 7 December, 1998 passed by the High Court Division, Dhaka in FMA Nos. 109 and 144 of 1997 respectively).
 
JUDGMENT
 
Mustafa Kamal CJ.
 
1. These two appeals by leave at the instance of the successful candidate from constituency No. 129, Pirojpur-1 in the general election held on 12 June, 1996 arise out of the election dispute being Election Case No. 1 of 1996 filed by the runner-up candidate, respondent No. 1, under Article 49(2) of the Representation of the Peoples Order, 1972 (PO No. 155 of 1972), briefly, the Order, before the Election Tribunal (District and Sessions Judge), Pirojpur.
 
2. The appellant was opposite party No. 5 in the election petition. The election-petitioner alleged, inter alia, in his petition that he and opposite party Nos. 5-12 contested for the parliamentary seat from the aforesaid constituency comprising the local areas of Pirojpur, Nazirpur and Indurkani Police Stations. There were 93 polling centres. The election petitioner was a nominee of the Bangladesh Awami League having the election symbol ‘Nouka’ while opposite party No. 5 was the nominee of Jamat-e-Islaami, Bangladesh having election symbol “Daripalla’. Opposite party No. 5 was declared elected by a margin of 280 votes securing in total 55,717 votes while the election-petitioner got the second highest vote i.e. 55,437. The election in different polling centres suffered from various illegal and corrupt practices and non-compliance of the provisions of the Order and the rules framed thereunder. Opposite party No. 14 Abdul Mannan, Superintendent of SM Darussunnat Dakhili Madrasha, was appointed one of the 4 Assistant Presiding Officers of Gharghata Government Primary School Polling Centre within Nazirpur PS, but he remained absent and engaged opposite party No. 15 Shahidul Islam, an Assistant Teacher of the said Madrasha to perform the duty of Assistant Presiding Officer in his place by false personation, This was done for influencing the voters to cast their votes in favour of opposite party No. 5. The said Shahidul Islam worked as an Assistant Presiding Officer in booth No. 2 of Gharghata Government Primary School polling centre from 8-00 AM to 1- 30 PM until his actual identity was disclosed and he was apprehended and handed over to the Police on duty. After the polls the Presiding Officer lodged an FIR with Nazirpur PS against Shahidul Islam alleging false personation as aforesaid. Shahidul Islam while working falsely as an Assistant Presiding Officer in booth No. 2 issued ballot papers to the electors, directed the voters not to cast their votes in favour of the election-petitioner and canvassed for casting their votes in favour of opposite party No. 5 and such unauthorised acts of Shahidul Islam vitiated the election of that polling station which materially affected the result of the election of the entire constituency. After Shahidul Islam was taken into police custody at 1-30 PM no Assistant Presiding Officer was employed to work in his place. The Presiding Officer of that polling station himself did not perform the function of the Assistant Presiding Officer. Thus the election as a whole of that polling centre was void.
 
3. Further allegation of the election-petitioner is that the supporters and workers of opposite party No. 5 created terror at Gabgachhiya Government Primary School Polling Centre within Indurkani PS and as a result the situation went out of control of the Presiding Officer who stopped polling at about 10-30 AM. The polling agents of the election-petitioner were driven out from the polling booth. Polling, however, resumed at 12-00 PM and continued upto 4-00 PM. In the absence of the polling agents of the election-petitioner the workers of opposite party No. 5 cast false votes.
 
4. The election-petitioner further alleged that the miscreants obstructed the voters of the minority community from coming to Baraibuniya High School Polling Centre and Maddhya Baniyari Government Primary School Centre to cast their votes by disrupting and disconnecting the communications by pulling down the bamboo bridge over the river Baleswar and by sinking the boats by which the voters were to cross the river. They also obstructed the voters of the minority community to come to Tarabuniya Government Primary School centre by explosion of hand bombs and showing firearms. As a result most of the voters of the minority community of some villages could not come to the said polling stations to cast their votes.
 
5. In Bhairampur Government Primary School Polling centre 360 ballot papers without official seal on the back were illegally counted in favour of opposite party No. 5 ignoring the objection raised by the polling agents of the election-petitioner, Opposite party No. 3 the Thana Nirbahi Officer of Pirojpur and Assistant Returning Officer unauthorisedly opened a control room in his office premises for receiving the election results and materials of different polling stations under Pirojpur and Indurkani Police Stations. The said Thana Nirbahi Officer in connivance with opposite party No. 5 opened the sealed packets of ballot papers, counted few hundred invalid ballot papers in favour of opposite party No. 5 and excluded few hundred valid ballot papers of the election-petitioner from counting and thus changed the election result. He detained the Presiding Officer of Char Baleswar Government Primary School Polling station with the election result and materials at Indurkani Bazar till midnight and thereafter he was brought therefrom with election materials by sending a car.
 
The election result of the said centre was changed with the help of the Presiding Officer of that centre showing opposite party No. 5 ahead by a margin of 367 votes. The election result of all the polling centres under Pirojpur and Indurkani PS was manipulated. The polling at Gabgachhiya Government Primary School Polling Centre not having been held in accordance with law, the polling was void as a whole and a fresh poll was necessary to be called for in those two polling centres. The ballot papers of all the polling centres under Pirojpur and Indurkani PS excepting Gabgachhiya Government Primary School Centre are to be recounted. In view of the facts as stated above the election of opposite party No. 5 is to be declared void.
 
6. The election officials, namely, opposite party Nos. 2-4 by filing a joint written objection refuted the allegations of the election-petitioner except admitting that opposite party No. 15 Shahidul Islam who was not appointed as Assistant Presiding Officer had worked as such at the Gharghata Government Primary School Centre till 1-30 PM by falsely personifying Abdul Mannan, opposite party No. 14, who was actually appointed as Assistant Presiding Officer of that centre. They, however, denied that while working as an Assistant Presiding Officer Shahidul Islam had directed the voters not to cast their votes in favour of the election-petitioner or canvassed to the voters in favour of opposite party No. 5. Shahidul Islam could not exercise any influence in the neutral holding of election in that centre. The Presiding Officer of Char Baleswar Primary School Centre, opposite party No. 17, also filed a separate written objection denying the allegations of the petitioner and stating what he claimed to be correct facts regarding the said allegations.
 
7. The main contender, opposite party No. 5, in his written objection denied all the allegations made by the election petitioner and alleged that they were all falsely made.
 
8. The Tribunal took up the following points for determination:
 
(i) Had the election of Garghata Government Primary School polling centre as a whole been vitiated by the act of opposite party No. 15 who without appointment performed the function of Assistant Presiding Officer in Booth No. 2 of that centre falsely personifying himself as Abdul Mannan opposite party No. 14, the duly appointed Assistant Presiding Officer and for that has the election result been materially affected?
 
(ii) Did the workers and supporters of the opposite party No. 5 take over control of Gabgachhiya Government Primary School polling centre assaulting Humayun Kabir, a polling agent of the petitioner, and forcibly removing his all polling agents from the booths and cast false votes in favour of opposite party No. 5 and resist the supporters of the petitioner to cast their votes?
 
(iii) Did the followers and supporters of opposite party No. 5 obstruct the voters of the minority community attached to Baraibuniya High School Centre, Maddhyabaniary Government Primary School centre and Tarabuniya Government Primary School centre to go to their respective polling centre to cast vote in the alleged manner?
 
(iv) Had 360 ballot papers bearing no official seal been counted in favour of the Opposite Party No. 5 at Bhairampur Government Primary School Centre?
 
(v) Had the Opposite Party No. 5 got the result of Char Baleswar Government Primary School polling centre manipulated and changed by the Presiding Officer of that centre at the instance of Opposite Party No. 5 after receipt of the result in his office in the late hour of night following poll?
 
(vi) Has the election of opposite party No. 5 been procured or induced by any corrupt or illegal practice committed by opposite party No. 5 or by his election agent or by any other person with his connivance or consent?
 
(vii) Has the result of the election materially been affected by reasons of non compliance of any provision of erection law?
 
(viii) Is the election of the Opposite Party No. 5 liable to be declared void?
 
(ix) To what other relief, if any, is the petitioner entitled?
 
9. As regards issue Nos. 2-6 the Tribunal upon consideration of the evidence and materials on record clearly found that they were not proved. As to issue No. 1 the Tribunal clearly found that although the unauthorised participation of opposite party No. 15 as the Assistant Presiding Officer in the polling at Gharghata Government Primary School Centre had vitiated the election of that centre “there is not an iota of evidence that the returned candidate (Opposite Party No. 5) had any complicity in the illegal and unauthorised act of Shahidul Islam or that the unauthorised act of Shahidul Islam was done with the consent or connivance of the returned candidate. Moreover, the Opposite Party No. 5 and his election agent had no scope to take any precaution to prevent the unauthorised act done by Shahidul Islam. So requirement of Article 63 of the Order has not been met up. Therefore , election of the Opposite Party No. 5 cannot be declared void on account of the unauthorised act of Shahidul Islam under Article 63 of the Order”.
 
10. The Tribunal, however, found that the requirement of Article 65 of the Order has been fulfilled in respect of the said Gharghata Government Primary School Centre and the election result of the entire constituency will be affected with the declaration of the election of that centre as void. Finally by judgment and order dated 19 May, 1997 the Tribunal allowed the election petition in part declaring the election at the Gharghata Government Primary School Polling Centre under Nazirpur PS as void and further the election as a whole void. It was further ordered as follows:
 
“The election result of the opposite party No. 5 of Bhairampur Government Primary School Centre and Char Baleswar Government Primary School Centre be modified to the effect that the opposite party No. 5 has got 631 votes at Bhairampur Government Primary School Centre and 888 votes at Char Baleswar Government Primary School Centre and the results of other candidates including the petitioner of these two centres remain intact. The results of other 90 polling centres remain unchanged. Fresh poll is to be held at Gharghata Government Primary School Centre and thereafter consolidating the result of fresh poll of that centre with the modified results of Bhairampur Government Primary School Centre and Char Baleswar Government Primary School Centre and existing results of remaining 90 centres election result is to be declared afresh.”
 
11. Being aggrieved by the said judgment and order both opposite party No. 5 (the appellant) and the election-petitioner (respondent No. 1) took separate appeals to the High Court Division being First Miscellaneous Appeal Nos. 109 and 144 of 1997 respectively. Both the appeals were heard together by a Division Bench and by the impugned judgment and order dated 7 December, 1998, the appeal of opposite party No. 5 (the appellant) was dismissed and that of the election-petitioner (respondent No. 1) allowed in part with modification of the order of the Election Tribunal in the following terms:
 
“We are of the view that the declaration of the Election Tribunal the election result of Gbarghata Govt. Primary School as void direction of re-poll is in accordance with law and that order is hereby upheld. In respect of Baraibuniya High School polling station we have already observed that the election in that polling station was not held peacefully and in accordance with law and accordingly, we declare the election of the said polling station as void. We direct re-poll of Baraibuniya High School Polling Station. The votes which are not valid votes as per requirements of Article 3(2)(d)(e) & (1) are hereby declared as invalid votes and those votes are deducted from the total votes counted.”
 
12. Leave was granted to consider the submission of Khandaker Mahbubuddin Ahmed, learned Advocate for the appellant, first, that the impugned judgment is legally untenable in that the decision has been made in a disjointed manner and without proper and correct perception of the issues and the law involved in the matter and ignoring the findings made by the Tribunal on facts as was required of the appellate forum. It has been specifically submitted that the main argument of the appellant that the legal effect of the unauthorised presence of Shahidul Islam at the Gharghata Government Primary School Centre was not legally and correctly construed by the Election Tribunal, in view of its own findings that the appellant has nothing to do with his presence at the centre and that it was not proved that he had in any way worked for the appellant and against the election-petitioner while acting as Assistant Presiding Officer, has not at all been adverted to by the High Court Division and, as such, the impugned decision upholding the finding of the Election Tribunal in respect of the said Centre is not sustainable in law.
 
13. Secondly, leave was granted to consider the submission that in view of pleading relating to illegal counting of only 360 ballots in Bhairampur polling station by the election-petitioner and in view of the fact that there was no pleading as to wrong counting of ballots in Char Baleswar polling station and the point at issue and the decision given by the learned Election Tribunal being on the question whether existence of part of the official mark on the ballot was sufficient to take it as a valid vote, the High Court Division erred in law in taking various extraneous matters into consideration and excluding hundreds of ballots of both the parties from counting on the ground of non-compliance of the provisions of Article 3 1(2)(d)(e)(f) of the Order.
 
14. Thirdly, leave was also granted to consider the submission that the High Court Division erred in law in interfering with the decision of the Tribunal as to issue No. 3 i.e., the alleged obstruction caused to the voters of the minority community from coming to the polling centre at Baraibunia High School in that neither the reasons given by the Tribunal were at all adverted to nor the elaborate findings on the point were reversed.
 
15. Lastly, leave was also granted to consider that there having been no pleading at all in the election petition as to illegal counting of votes by the Presiding Officer of Char Baleswar polling centre and no point for determination having been raised and taken in that behalf by the Election Tribunal and further that specific allegations in respect of that centre having been found not to have been proved the recounting of votes of that centre was wholly without jurisdiction. The High Court Division had no perception at all with regard to the case of the respondent in respect of that centre and illegally and under a misconception rejected the valid ballot papers of the appellant at the said centre (without even seeing them).
 
16. Khandaker Mahbubuddin Ahmed has rightly pointed out that the impugned judgment of the High Court Division is a disjointed exercise without any systematic and orderly disposal of a first appeal and without any proper and correct perception of the issues and the law involved in the matter. It also stares in the face of the impugned judgment that the High Court Division totally ignored the findings marked by the Tribunal on facts as was required of the appellate forum. Mr. Rafique ul-Huq, learned Advocate for respondent No. 1, has not specifically replied to this general submission, but it is our view that we ought not to be carried away merely because of a poor treatment of a well- written judgment of an original Tribunal.
 
17. Khandaker Mahbubuddin Ahmed emphasised on the legal effect of the admittedly unauthorised presence of Shahidul Islam at Gharghata Government Primary School Centre. He submits that the Tribunal considered evidence of PWs 3-6 and 20-24, voters of that Centre and found that Shahidul Islam impersonated Abdul Mannan as Assistant Presiding Officer and issued ballot papers to those witnesses. He thus acted without any authority in booth No. 2 from the beginning of the poll at 8-00 AM upto 1-30 PM. The Tribunal found that in booth No. 2 the polling agents of the contesting candidates were present and it was highly improbable and unbelievable that in their presence Shahidul Islam canvassed for the appellant. Moreover, neither the election-petitioner nor his election agent or polling agent made any complaint to any authority at the time of polling or immediately after the poll alleging that at the time of taking vote Shahidul Islam canvassed for the appellant inside the booth. In such circumstances, the Tribunal came to the finding that it had not been proved that Shahidul Islam canvassed for the appellant. The Tribunal further found that there was no evidence that Shahidul Islam was engaged by the appellant or his election agent or that he worked as a fake Assistant Presiding Officer within the knowledge of the appellant. Even in the election petition, it is not stated that the appellant inducted Shahidul Islam to work as Assistant Presiding Officer in place of Abdul Mannan to influence the voters to cast their votes in his favour. The Tribunal found that Abdul Mannan presumably owing to illness sent Shahidul Islam to work in his place. There is nothing to show that Abdul Mannan is a supporter or party man or relation of the appellant and that he engaged Shahidul Islam, his subordinate staff of Madrasha, for the benefit of the appellant. PWs 3-6 and 20-24 have not stated in their evidence that Shahidul Islam was engaged by the appellant or that he worked as an Assistant Presiding Officer at the instance of the appellant. The Tribunal noted the evidence of Opposite Party No. 8 Rostam Ali Sk., a Polling Officer of booth No. 2, stating that in the morning of poll he informed the Presiding Officer that Abdul Mannan did not turn up and in his place Shahidul Islam impersonating himself as Abdul Mannan was working as Assistant Presiding Officer.
 
18. Khandaker Mahbubuddin Ahmed submits that this part of the finding of the Tribunal was completely ignored by the High Court Division and without reversing the said findings of the Tribunal suddenly gave the following finding:
 
“The said Shahidul Islam acted as Assistant Presiding Officer unauthorisedly by way of his presence and also canvassed for respondent No. 1 Moulana Delwar Hossain Saydee, as a result of (sic) election has been materially affected and the election Tribunal rightly declared the election result of Gharghata Government Primary School Polling Station as void and directed fresh poll and, as such, we find no ground to interfere with this order.”
 
19. Khandaker Mahbubuddin Ahmed submits that this is an abrupt conclusion which is not supported by a fresh discussion of the evidence on record and by a reversal of the positive of the Tribunal.
 
20. Mr. Rafique-ul Huq, on the other hand, has relied upon the evidence of PWs 3-6 and 20-24 and has submitted that their evidence supports the finding of the Nigh Court Division.
 
21. We have gone through the evidence of PWs 3-6 and 20-24. We do not find from their evidence that it is the appellant who managed to send Shahidul Islam in place of Abdul Mannan or that either Shahidul Islam or Abdul Mannan is a party supporter or relation of the appellant or that the appellant had anything to do with the illegal activities of Shahidul Islam. The reasoning of the Tribunal that it was highly improbable that in presence of polling agents of the candidates Shahidul Islam would canvass for the appellant was completely ignored by the High Court Division. The finding of the High Court Division that Shahidul Islam canvassed for the appellant was an abrupt one without the support of the evidence on record and without meeting the unassailable reasoning of the Tribunal in rejecting the evidence of PWs 3-6 and 20-24, that Shahidul Islam canvassed for the appellant in the booth.
 
22. Khandaker Mahbubuddin Ahmed further submits that after his arrest for false personating the poll in booth No. 2 continued upto 4-00 PM vide statement in paragraph 12 of the election petition. Therefore, there was no stoppage of the poll. There is also no evidence as to which of the candidates obtained the votes from the ballot papers issued by Shahidul Islam. In the said centre most of the votes had been cast in favour of respondent No. 1 who obtained 880 votes, whereas the appellant obtained only 37 votes in that centre. If the total votes of this polling station are excluded from count as vitiated the appellant remains elected with a much bigger margin than 280 votes. Therefore the whole election of this centre cannot be declared void for illegal participation of Shahidul Islam as Assistant Presiding Officer more so because of the provisions of Article 65 of the Order. By Shahidul Islam’s participation as Assistant Presiding Officer the result of the election either of the Gharghata Government Primary School Centre or of the constituency as a whole has not been materially affected. As such the Tribunal erred in law in ordering fresh poll in Gharghata polling station and the High Court Division has erred in affirming such finding of the Tribunal. Khandaker Mahbubuddin Ahmed complains that the High Court Division did not consider at all the above points which the appellant urged in his appeal before the High Court Division in Ground Nos. III and IV. The High Court Division has disposed of the appellant’s appeal without considering Ground Nos. III and IV in his Memo of Appeal.
 
23. Mr. Rafique-ul Huq submits that even if it is conceded that there is no fault of the appellant or the Presiding Officer or respondent No. 1 in Shahidul Islam’s act of false personating the fact remains that he had issued ballot papers from 8-00 AM to 1-30 PM. In the eye of law there was no voting whether the election result was materially affected or not. The very participation of an unauthorised person like Shahidul Islam vitiates the election procedure completely. This is conducting an election by impersonation. He submits that the Tribunal rightly observed that Article 63 of the Order is not attracted. What is attracted is Article 65(a) of the Order which is as follows:
 
“65. The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of—
(a) the failure of any person to comply with the provisions of this Order and the rules; or
 
24. In elaborating his submission Mr. Rafique ul Huq refers to Article 7(4) which provides that it shall be the duty of a Returning Officer to do all such acts and things as may be necessary for effectively conducting an election in accordance with the provisions of this Order and the rules. He also draws our attention to Article 9(1B) which provides that the Returning Officer shall appoint from the panel for each polling station a Presiding Officer and such number of Assistant Presiding Officers and Polling Officers to assist the Presiding Officers as the Returning Officer may consider necessary. He also refers to Article 9(2) which provides that:
 
“a Presiding Officer shall conduct the poll in accordance with the provisions of this Order and the rules, shall be responsible for maintaining order at the polling station and shall report to the Returning Officer any fact or incident which may, in his opinion, affect the fairness of the poll.
 Provided that during the course of the poll the Presiding Officer may entrust such of his functions as may be specified by him to any Assistant Presiding Officer and it shall be the duty of the Assistant Presiding Officer to perform the functions so entrusted.”
 
25. Mr. Rafique-ul Hug then refers to Article 31(1) which provides that where an elector presents himself at the polling station to vote, the Presiding Officer shall, after satisfying himself about the identity of the elector issue to him a ballot paper. Mr. Rafique-ul-Huq then refers to Article 29 which provides that the Presiding Officer shall exclude from the polling station all other persons except any person on duty in connection with the election, the contesting candidates, their election agents and polling agents, and such other persons as may be specifically permitted by the Returning Officer.
 
26. Such being the provisions of law. Mr. Rafique-ul-Huq submits that both the Tribunal and the High Court Division correctly found that Article 65(a) is attracted to the facts and circumstances of the case because a complete stranger was engaged in issuing ballot papers and because it is mandatory that things are to be done in the manner specified in the Order and in the rules. He also cites several decisions in support of his submission.
 
27. There is no gainsaying the fact that a complete stranger entered into the scene with or without the knowledge of the Presiding Officer but without the connivance or knowledge of the appellant in booth No. 2. It is not however the provision of Article 65(a) that any or every kind of failure of either the Returning Officer or the Presiding Officer to comply with the provision of the Order and the rules will result in the declaration of the elects a whole to be void. Article 65 adds a strong rider, namely, if the Tribunal “is satisfied that the result of the election has been materially affected by reason of’ the same. That satisfaction is a sine qua non for invoking an illegality to vitiate an election.
 
28. When Shahidul Islam acted as Assistant Presiding Officer from 8-00 AM to 1-30 PM and the poll was admittedly continued upto 4-00 PM there must be some evidence that owing to Shahidul Islam’s participation the result of the election in that centre was materially affected. It could be materially affected if Shahidul Islam canvassed for the appellant. It could also be materially affected if he had forbidden the voters not to vote for respondent No. 1. Equally it would have been materially affected if there was connivance of the appellant in the participation of Shahidul Islam in the election process. The Tribunal has merely found that by the unauthorised act of Shahidul Islam the whole election of this particular centre was vitiated. There is absolutely no finding by either the Tribunal or the High Court Division as to how and in what manner by the admittedly illegal participation of Shahidul Islam, the result of the election in that centre has been materially affected. There is absolutely no averments by respondent No. 1 in his election petition that had Shahidul Islam not participated in the election process he would have obtained more than 880 votes in the Centre. We agree with Khandaker Mahbubuddin Ahmed that for failure of the Presiding Officer to take proper steps when Abdul Mannan did not show up and when Shahidul Islam acted in his place unlawfully, the voters cannot be disenfranchised and the candidates should not be penalised to go through the motion of another polling particularly when there is absolutely no finding that Shahidul Islam’s participation made a difference in the voting pattern or that the appellant had a connivance in the matter or that he benefited from an illegality of which he had prior knowledge.
 
29. We are, therefore, unable to accept the submission of Mr. Rafique-ul Huq that Article 65(a) is attracted in the facts and circumstances of the case. Any and every kind of failure of any person to comply with the provisions of the Order and the rules will not result in the declaration of the election as a whole to be void. The Tribunal has to be satisfied that the result of the election has been materially affected thereby. From the discussions made above we do not find either the Tribunal or the High Court Division to have made out any reasonable case that the result of the election has been materially affected by the participation of Shahidul Islam in the election process. We therefore uphold the first contention of Khandaker Mahbubuddin Ahmed.
 
30. Khandaker Mahbubuddin Ahmed has argued the third point next on which leave was granted. We will, therefore, consider this point now. He submits that in paragraphs 24 and 25 of the election petition the election-petitioner alleged that the miscreants and supporters (without specifying whose) obstructed the voters of minority community attached to No. 2 Baraibuniya High School Polling Centre and No. 4 Maddhya Baniyari Government Primary School Polling Centre (which is not involved in these appeals) from proceeding to the polling station by disconnecting the communication system by breaking the bamboo bridges across the small river Baleswar and also by sinking boats carrying voters. In support of this allegation the election petitioner examined himself as PW 1 and also examined PWs 17-19 and 25-30, voters of Baraibuniya centre unable to reach the centre. The appellant examined OPW No. 1, the election officer on behalf of opposite party Nos. 2- 4, OPW No. 22, his polling agent, and OPW Nos. 29-33, voters of Baraibuniya centre refuting the election-petitioner’s aforesaid allegations. The Tribunal considered the pleadings, oral and documentary evidence of the parties and the law to come to a negative conclusion on the basis of the following findings:
 
(i) The allegations are vague and unspecified.
(ii) The material particulars of the allegations as required under Article 51(1) (b) of the Order, have not been furnished.
(iii) It is not stated in the pleading that the miscreants and supporters of the appellant obstructed the aforesaid voters.
(iv) The names of the voters who had been allegedly obstructed have not been mentioned in the election petition.
(v) At the trial a new case has been sought to be made out, namely, that Hindu voters of Samantogati village could not cast their votes due to obstructions by the ‘scale’ badge-holder supporters of the appellant.
(vi) The story that it is the appellant’s supporters who prevented Hindu voters of Samantogati from coming to polling station by making threats, breaking bamboo bridges and sinking ferry boats did not find place in the election petition.
(vii) Used voters list of the concerned polling station showing the number of Hindu voters who cast their votes has not been called for and proved to show that Hindu voters of Samantogati village could not vote.
(viii) Names of PWs 17-19, 25-28 and 30 have not been stated in the election petition as potential voters in favour of the election- petitioner, obstructed in coming to the said polling centre.
(ix) Those PWs could not name the persons who allegedly obstructed them.
(x) It is not probable that on the date of country-wide polling, unknown outsiders came to the remote village of Samantogati to obstruct casting of votes.
(xi) In this centre in all 1597 votes were cast which does not support the allegation that minority community voters could not cast their votes being obstructed by men of the appellant.
(xii) OPW Nos. 29-33 have denied the allegations of the election-petitioner.
 
31. Coming now to the impugned judgment Khandaker Mahbubuddin Ahmed submits that the High Court Division did not advert to the above findings of the Tribunal and did not reverse those findings with cogent reasons based on record and evidence. The High Court Division’s decision on this point is not a proper judgment of reversal and the same is not sustainable in law and should be set aside.
 
32. On the contrary Mr. Rafique-ul Huq submits that the High Court Division has discussed afresh the evidence of PWs 17-19 and 25-30 and has rightly come to the conclusion that in order to prevent 550 Hindu voters out of 700 total voters of village Samantogati the appellant naturally posted the scale badge-holders of his party throughout the east side of the river Baleswar. These workers did their job successfully in obstructing the Hindu voters from coming to the polling station by sinking ferry boats and by breaking bamboo bridges. The High Court Division correctly held that the election result of Baraibuniya centre being rigged it is liable to be declared void and there should be a fresh poll in that centre.
 
33. We have gone through the election petition. We find that the Tribunal’s findings on the election petition are unexceptionable. We also find that the various reasons given by the Tribunal for not relying upon the evidence of PWs 17-19 and PWs 25-30 have not been adverted to at all by the High Court Division and therefore the impugned judgment cannot be called a proper judgment of reversal. The High Court Division also did not advert to the evidence of OPW Nos. 29-33 in this regard. There is also a misreading of the evidence of PW 18 Shitol Chandra Biswas who never stated in his deposition, as the High Court Division observed, that he was scared by explosion of bomb and placing of rifle on his chest by the workers of the appellant. The High Court Division appears to be unaware of what is called rigging an election. Throughout, therefore, we find that the impugned judgment is an exercise in a lack of application of mind to the facts and law involved in the appeals. The finding of the High Court Division is not sustainable in law and the submissions of Khandaker Mahbubuddin Ahmed in this regard are also upheld.
 
34. Before we advert to the second and fourth grounds on which leave has been granted it is necessary to state in substance the background behind these points. In paragraph 26 of the election petition the election-petitioner complained that at the time of counting of ballots after the poll of No. 5 Bhairampur Government Primary School Polling centre 360 ballot papers in which votes were cast in favour of the appellant but not having any official seal on their back were illegally counted in favour of the appellant. Without paying any heed to the objection raised by the polling agents of the election-petitioner. Mr. Bijoy Krishna Mukherjee, Presiding Officer of that centre, opposite party No. 18, counted those ballots in favour of the appellant and declared the result of that centre. Those ballots are liable to be excluded from counting in view of the provisions of Article 3(2)(d) read with Article 36(4)(c)(i) of the Order. Hence the ballots of that polling centre are required to be recounted by the Tribunal as the counting has materially affected the result of the election.
 
35. The Election Tribunal obtained the ballot papers of Bhairampur Government Primary School Centre, Char Baleswar Government Primary School Centre and Gharghata Government Primary School Centre. By order No. 35 dated 6-4-97 the Tribunal noted in the order-sheet that the bag containing the ballot papers in which votes were cast in favour of the appellant in respect of Bhairampur Government Primary School Centre was opened first and in total 659 ballot papers in which votes were cast in favour of the appellant were found. On the back of 18 ballot papers there were no official mark or seals. 429 ballot papers contained full official round seal marks and in 202 ballot papers a part of official round seals are there while the other parts of the seals have fallen in the counter foils.
 
36. Then the Tribunal opened the bag containing the ballot papers of Char Baleswar Government Primary School Centre and opened the packet containing 896 ballot papers in which votes were cast in favour of the appellant. In one ballot paper no seal was given against any symbol. In one ballot paper the major part of the seal fell on the symbol Television. 6 ballot papers do not contain any official mark or seal or any signature on the back. On the back of 382 ballot papers there was no signature, only a part of the seal but not the code number. In 67 ballot papers there are both signatures and part seals but no code number. In 284 ballot papers there are signatures and part seals with Code number on the back. In 155 ballot papers there are no signatures but there is code number and part seal on the back. As there was no allegation against counting of votes in Gharghata Government Primary School Centre the bag of that centre was not opened.
 
37. By order No. 39 dated 16-4-97 the Tribunal noted that in presence of both parties it opened the remaining ballot papers of Bhairampur Primary School Centre and Char Baleswar Primary School Centre and noted the number of ballot papers containing seals, partial seals, code number, signatures, etc. in which votes were cast in favour of the election-petitioner and other candidates.
 
38. By its judgment the Tribunal found that the allegation of the election-petitioner that 360 ballot papers without official seals were counted in favour of the appellant at Bhairampur polling centre is not correct and that the allegation is imaginary and without any basis. Only 18 ballot papers without official seals were counted in favour of the appellant. 202 ballot papers counted in favour of the appellant were found to have contained partial seals, but it is not the case of the election-petitioner that any ballot papers bearing partial seal was counted in favour of the appellant. It is also not claimed by him in the election petition that ballot papers bearing a part of official seal are invalid and are liable to be excluded from counting. The Tribunal, however, took up the question whether the ballot papers bearing official seals in part would be said to be ballot papers bearing no official mark.
 
39. The Tribunal then noticed Article 31 (2)(d) of the Order which provides that the ballot papers shall on its back be stamped with the official mark before the ballot papers is issued to an elector. It is further provided in that Article that the Presiding Officer will have to stamp the counterfoil with the official mark (Article 31(2)(e). Article 36 (4)(c)(i) of the Order provides that the Presiding Official shall count the votes excluding the ballot papers which bear “no official mark”. There is no definition of “official mark” in the Order. It is there in the book issued by the Election Commission for the guidance of the election officials. The book provides that three kinds of seals are issued in the polling centre at the time of polling. These are (1) official seal (2) marking seal and (3) brass seal. In the official seal and the brass seal there is a security number (Code mark) which is used on the ballot papers for its security and to detect vote forgery. In that book in Chapter II a list of articles used in a polling centre has been given. In this list item No. 5 is a rubber stamp to be used in each booth. The rubber stamp is termed as official mark by putting the words “official mark” within bracket. Hence the Tribunal concluded that the official seal is what is stated in the Book of Guidelines as the official mark. Each ballot paper issued must be stamped with official. mark or official seal or else it would be left Out of counting. It was argued before the Tribunal that each official seal bears a secret code number and the official seal containing no such confidential code number cannot be treated as official mark. The Tribunal was unable to accept this view. It opined that ballot papers bearing official seal in part without code number cannot be said to be a ballot papers without official mark. In many ballot papers, the Presiding Officer irregularly affixes the official seal on the back of the ballot papers covering some portion of counterfoils. When the ballot papers were separated from the counterfoils a portion of the official seal fell on the counterfoils and the other portion remained in the ballot papers. In some cases the code number fell in the counterfoils and in other cases the code number fell in the ballot papers. The Tribunal held therefore that it would not be con I to say that the ballot papers containing a part of the I official seal without code number is a ballot paper without official mark. The election-petitioner argued in favour of excluding 202 ballot papers of the appellant from the count at Bhairampur centre as those ballot papers contained official seals in part. The Tribunal rejected this contention and held that those kinds of ballot papers have also to be counted not only in favour of the appellant but also in favour of the other candidates including the election petitioner. Therefore, the Tribunal excluded only 18 votes out of 649 votes counted in favour of the appellant at Bhairampur centre and thus reduced the appellant’s votes to 631 and held that due to such deduction the whole result of the constituency was not affected.
 
40. The High Court Division, on the other hand, took the view (which is hardly intelligible) that under Article 31(2)(d)(e)(f) ‘the ballot papers which do not contain the stamp with official mark in its back and the number of the elector mark in writing on the counterfoil by the Presiding Officer having stamp in the counterfoil with the official mark and without signature or thumb impression on the counterfoil of the ballot papers cannot be treated and counted as valid votes’. The High Court Division, therefore, declared 894 votes of the appellant and 226 votes of the election-petitioner as invalid votes in Char Baleswar Government Primary School Centre and 649 votes of the appellant and 19 votes of the election-petitioner in Bhairampur Government Primary School polling centre as invalid votes on the grounds that those ballot papers either do not contain any official mark with code number in full or contain part of official mark without code number or contain no full official mark or do not contain any signature and full official mark or no full official mark and signature or thumb impression of the voters on the counterfoils
 
41. Khandaker Mahbubuddin Ahmed submits that the categorical and specific case of the election- petitioner in his election petition is that 360 ballot papers without official seals were counted in favour of the appellant in Bhairampur polling centre. The Tribunal elaborately discussed what is “official mark’ as contained in Articles 31 and 36(4) of the Order. Article 36(4)(c)(i) directs exclusion of a ballot from counting if it bears “no official mark”. Khandaker Mahbubuddin Ahmed submits that Article 36(4)(c)(i) does not say “full official mark”, or “initial” of the Assistant Presiding Officer or “code number”. It directs exclusion only if there is no official mark at all i.e., when there is a total absence of official mark. But if there is a seal or part of a seal which the Presiding Officer considers to be the “official mark” and no objection is taken from the side of any party at the counting of votes in taking such ballot in the count, then everyone accepts the mark bearing on the ballot papers as “official mark” and, as such, there was no wrong or illegality in taking such ballots into counting. Khandaker Mahbubuddin Ahmed submits that this point has been considered in the case of Abdul Matin vs. Election Tribunal, 31 DLR (AD) 331 and in his submission there is no good reason to depart from the principle laid down therein. The High Court Division has no occasion to check the election material for themselves. There is, therefore, no cause or reason for the High Court Division to make some new observations on facts beyond what have been noted by the Tribunal in Order No. 35 dated 6-4-97 and Order No. 39 dated 16-4-97 relating to recounting of ballots. Khandaker Mahbubuddin Ahmed submits that in view of the provisions of Article 36(4)(c)(i) and the principles laid down by this Division in the aforecited case in 31 DLR (AD) 331 the aforesaid finding of the Tribunal as noted above should be upheld excluding 18 votes of Bhairampur polling station and 8 votes of Char Baleswar polling station cast in favour of the appellant and the High Court Division’s finding on this point ought to be rejected.
 
42. In defending the impugned judgment of the ugh Court Division Mr. Rafique-ul Huq lays stress on Article 31(2)(d) and (e) and submits that the ballot papers are mandatorily required to be stamped with full official mark on their back. The counterfoils are also mandatorily required to be stamped with the official mark not on the back side but on the front side. He has also referred to Article 31(5), Rule 22(a)(i)(ii) and Article 36(4)(i) and (ii) and submits that the High Court Division did not commit any illegally in excluding ballot papers of both parties containing partial official seals. On the question of excluding ballot papers containing no Code number or signature of the Assistant Presiding Officer Mr. Rafique-ul-Huq submits that under Article 91(c) the Election Commission may “issue such instructions and exercise such powers and make such consequential orders as may, in its opinion be necessary for ensuring that an election of any polling station is conducted impartially, justly and fairly, and in accordance with the provisions of this Order and the rules’. He therefore submits that the instructions issued by the Election Commission has the backing of law and therefore the Code mark and the signature of the Assistant Presiding Officer on the ballot papers issued are very much a part of the election rules. The High Court Division, therefore, has correctly excluded from consideration the ballot papers which did not contain the Code mark or the signature or initial of the Assistant Presiding Officer.
 
43. To this Khandaker Mahbubuddin Ahmed submits that Article 91 opens with the words save as otherwise provided” which clearly indicates that the guidelines under Article 91 are not meant to override the provisions of the Order. Article 91 is only an enabling provision for issuing instructions for educating and guiding the election officials so that a fair election may be conducted smoothly. He also submits that there was no pleading at all in the election petition as to illegal counting of votes at Char Baleswar polling centre. No point for determination has been raised in that behalf by the Election Tribunal. The Tribunal found that some specific allegations in respect of that centre have been found not to have been proved. Therefore, the recounting of votes of that centre was wholly without jurisdiction. The High Court Division had no perception with regard to the case of the election- petitioner in respect of that centre and under a misconception illegally rejected hundreds of valid ballot votes of the appellant at Char Baleswar polling centre.
 
44. We have no hesitation in agreeing with the perfectly legal and correct argument of Mr. Rafique ul-Huq that if Article 31(2)(d)(e) is to be followed in its full letter and spirit then a ballot paper is to be stamped on its back with full official mark and a counterfoil is to be stamped with full official mark not on the back but on the front side. This is the correct and legalistic position, but during the rush that follows a brisk polling it may not be possible for the Presiding Officer or the Assistant Presiding Officer to follow Article 3 1(2)(d)(e) in its full letter and spirit and they may have to opt for satisfying the said Article in substance by putting the official mark on the back of the ballot papers leaving a part of the official mark in the ballot paper and the remaining part of the same in the back of the counterfoil. If, however, the ballot paper does not contain any official mark, either in part or in full the Presiding Officer has no option but to exclude it from count. The impression of a part of the official seal on the back of a ballot paper is a shortening of the elaborate procedure under Article 3 1(2)(d (e) under pressure of circumstances. We repeat what we stated in the case of Abdul Matin vs. Election Tribunal, 31 DLR (AD) 331. “The standard of a care which is required with such strictness as in putting the official mark and initial may, due to bonafide error, fall short but that should not affect the valuable right of franchise” and further “It cannot be that the legislature requires a voter to be vigilant regarding the performance of duties by the Government functionaries”. We, therefore, hold that the Tribunal was justified in not excluding the ballot papers from counting which contained a part of the official seal, because the law has not demanded in a mandatory language the presence of a full seal on the ballot paper before its exclusion from count.
 
45. Now coming to Code number and the signature or initial of the Assistant Presiding Officer, it must be remembered that the ballot papers that are required to be excluded from the count are fully described in Article 36(4) (i)-(iv) of the Order. Neither the Tribunal nor the High Court Division has any jurisdiction to add any other extraneous requirement other than those contained in sub-clauses (i)-(iv) of clause (4) of Article 36, These sub-clauses do not require that a ballot paper is to be excluded from the count if it does not contain the Code number or the signature or initial of the Assistant Presiding Officer. The High Court Division acted without jurisdiction in excluding the ballot papers of both the appellant and the election. petitioner containing the aforesaid omissions. Further, from the election petition we do not find that the election-petitioner made any allegation as to the illegal counting of votes by the Presiding Officer of Char Baleswar polling centre. We have quoted the points for determination by the Election Tribunal. There is no point for determination on illegal counting of votes at Char Baleswar polling centre. The election-petitioner raised other specific allegations in connection with that centre and the Tribunal specifically found those allegations not to have been proved. In such circumstances, the recounting of votes of Char Baleswar polling centre was uncalled for and without jurisdiction and was an unnecessary roving exercise. The High Court Division did not apply its mind to the contending issues between the parties. Its rejection of the valid ballot papers of the appellant at Char Baleswar polling centre without even seeing them was wholly without jurisdiction and its rejection of valid ballot papers of the appellant at Bhairampur polling station was also without jurisdiction.
 
For all the above reasons, both the appeals are allowed without any order as to costs.
 
Ed.