Mozibur Rahman Moznu (Md) Vs. Abdul Halim and others, 53 DLR (AD) (2001) 93

Case No: Civil Appeal No. 23 of 1999

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Sharifuddin Chaklader,Mr. Saidur Rahman,,

Citation: 53 DLR (AD) (2001) 93

Case Year: 2001

Appellant: Mozibur Rahman Moznu (Md)

Respondent: Abdul Halim and others

Subject: Election Matter,

Delivery Date: 2001-5-30

Supreme Court
Appellate Division
(Civil)  
 
Present:
Mahmudul Amin Choudhury, CJ.
Mainur Reza Chowdhury, J.  
Md. Gholam Rabbani, J.
Md. Ruhul Amin, J.
Md. Fazlul Karim, J.
 
Mozibur Rahman Moznu (Md)
..........................Appellant  
Vs.  
Abdul Halim and others
........................ Respondents
 
Judgment  
May 30, 2001
 
The Constitution of Bangladesh, 1972
Article 102  
The Union Parishad (Election) Rules, 1983
Rules 39(4)  
Where the contesting candidates or their agents are not present the presiding officer is not debarred from counting of votes and prepare statement in form “K” and such preparation of the statement without signature of the candidate or his agent is lawful.  
Sending of “K” form without signature of the candidate or his agent considering the special circumstance can not be discarded by the returning officer and he shall fill up the form “L” accordingly consolidating the valid votes. 
If the candidate or his agent intentionally remains absent with any motive during counting votes and preparation of the ‘K’ form can not be delayed to frustrate the process of the election and their such absence shall not render the election process unlawful………(22 & 23)   
 
Lawyers Involved:  
Rafique-ul-Huq, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant.  
Saidur Rahman, Advocate-on-Record—For Respondent No.1.  
Sharifuddin Chaklader, Advocate-on-Record—For Respondent No.9.  
Not Represented—Respondent Nos. 2-8 & 10-11.  
 
Civil Appeal No.23 of 1999
(From the Judgment and Order dated 6th January, 1999 passed by the High Court Division in Writ Petition No.106 of 1998).  
 
JUDGMENT
 
M Ruhul Amin J.
 
1. This is a respondent’s appeal, by leave, from the judgment and order dated 6th January, 1999 passed by a Division Bench of the High Court Division in Writ Petition No.106 of 1998 declaring respondent-appellant as being the elected Chairman of No.3, Citholia Union Parishad in Parshuram Police Station, District Feni illegal and without lawful authority.  
 
2. Writ-petitioner-respondent No.1 challenged the declaration made by respondent No.6, Returning Officer, declaring the appellant (respondent No. 8 in the writ petition) elected Chairman, stating, inter alia, that election of No.3, Citholia Union Parishad was held peacefully in all Centres on 1-12-1997 except in the centre in Aloka Government Primary School Centre in Ward No.7 where the appellant with his unruly followers took away ballot papers as well as seals and put the seals in appellant’s ballot symbol ‘Anaros’ (Pineapple), that the election was seriously rigged and there was disturbance and that the Presiding Officer stopped the poll as per Rule 29(1) of the Union Parishad Rules, 1983. It was also alleged that appellant entered into Noapur Free Primary School Centre and that there was disturbance in that Centre and the poll was stopped. That on 27-12-1997 fresh poll was held in the aforementioned two Centres. It was alleged that on the day of repolling appellant again caused rigging and that police could not hold election as because the appellant and his followers took away ballot papers, that although because of disturbance and rigging election could not be held peacefully the Presiding Officer in collusion with the appellant counted the votes, prepared statement in Form ‘K’ without taking signature of the polling agent in the result sheet which was total violation of Rule 39(4) of the Union Parishads (Election) Rules, 1983 (hereinafter briefly the Rules) and sent the said result to the Returning Officer who consolidated in From ‘L’ the valid as well as challenged votes of the respective candidates and that according to the consolidated result the appellant got 2961 votes and respondent No.1 got 2751 votes and the same was sent to the Election Commission for publication of the result. The appellant was declared elected Chairman of No.3, Citholia Union Parishad by the Returning Officer (respondent No.6).  
 
3. Before publication of the result the respondent No.1 moved the High Court Division in its constituent jurisdiction challenging declaration of the respondent No.6 declaring the appellant as an elected Chairman of the Union Parishad in question and obtained Rule in Writ Petition No.106 of 1998. The High Court Division at the time of issuance of the Rule stayed publication of the result.  
 
4. Appellant’s case, upon denial of the allegations of the respondent No.1, was that there was no illegality in the holding of poll and consolidation of the result as well as in declaring him elected by the Returning Officer.  
 
5. The High Court Division by the judgment and order dated 6th January, 1999 made the Rule absolute holding that-
 
“The provision of rule 39(4) is a mandatory one consequently we also hold that without compliance of the requirements of sub-rule (4) of Rule 39 in order to get the consolidated result obtained is no result in the eye of law and upon such consolidated form stating the number of votes the result and the declaration of respondent No.8 as elected Chairman cannot be held to be valid and it is violative of that Rule.”
 
6. The appellant sought leave to appeal from the judgment of the High Court Division contending, inter alia, that the High Court Division acted illegally in exercising its jurisdiction under Article 102(2) of the Constitution in deciding the election dispute in the instant case without referring the matter to the election tribunal as provided in Part III of The Union Parishad (Election) Rules, 1983, that the High Court Division also acted illegally in assuming jurisdiction in the matter which is contrary to the law declared by the Appellate Division in the case of AFM Shah Alam reported in 41 DLR (AD) 68, that even rule 39(4) of the Union Parishad (Election) Rules, 1983 was wrongly construed by the High Court Division in holding that the provision of sub- rule (4) of rule 39 of the Rules is mandatory without mentioning in what respect, counting of the votes or presence of the candidates and their election agents or polling agents.  
 
7. Leave was granted to consider the aforesaid contentions of the appellant.  
 
8. Mr. Rafique ul-Huq, learned Counsel appearing for the appellant, reiterated the contentions of the appellant those were made in seeking leave to appeal. He has further argued that the jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked in election matter except on a very limited ground of total absence of jurisdiction or malice in law and that not in a case where the consolidated sheet of the election result has been challenged, adjudication hereof needs to decide the disputed question of fact which is the exclusive jurisdiction of the election tribunal.  
 
9. Respondent No. 1 filed the writ petition contending primarily that on 1-12-1997 election of No.3, Chitholia Union Parishad, hereinafter referred to as the Union, was held peacefully in all the Centres except two centres i.e. in Ward No.7, Aloka Government Primary School Centre and Noapur Free Primary School Centre, where there were disturbance and rigging of votes by the appellant. It was also the case of the respondent No.1 that on the repolling day i.e. on 27-12-1997 in the said two centres there were rigging and disturbance and the election could not be held but in spite of that Presiding Officer in collusion with the appellant counted the votes and prepared statement in Form ‘K’ without taking signature of respondent No. 1’s polling agent in the result sheet which was violation of rule 39(4) of the Rules and that on receiving the result of the two centres where poll was not held the Returning Officer consolidated the result of the candidates who contested for the post of Chairman in Form ‘L’ and had declared the appellant, who was said to have got highest number of votes, as the elected Chairman.  
 
10. It was the definite case of the respondent No. 1 that because of rigging and disturbance on the day of repolling, i.e. on 27-10-1997, in the two centres namely, Aloka Government Primary School Centre and Noapur Free Primary School Centre although no election could be held yet the Presiding Officers of the said two centres counted votes and prepared the statement in Form ‘K’ and that without taking signature of the respondent No. l polling agent in violation of the provision of rule 39(4) of the Rules sent the same to Returning Officer (respondent No. 6) who on receiving the same consolidated the result in Form ‘L’ and on the basis of the consolidated result declared appellant as the elected Chairman of the No.3 Chitholia Union Parishad.  
 
11. Respondent No. 1 challenged legality of the declaration made by the Returning Officer (respondent No. 6) declaring the appellant elected Chairman on the ground of taking into account the result of the two centres, where repolling was held on 27-12-1997, since election said to have not been held because of rigging and disturbance by the appellant in the said two centres. Those allegations of the respondent No. 1 were totally denied by the appellant in his application filed for vacating the order staying publication of the result of the election of the post of Chairman of the Union.  
 
12. Because of denial of the allegations of disturbance and rigging of votes on the repolling day by the appellant the said undoubtedly became disputed question of fact and that in Part-Ill of the Rules dispute of any kind relating to the election has been made matter for adjudication by the election tribunal.  
 
13. In the instant case it can hardly be disputed that the facts alleged to invoke the writ jurisdiction and that to have a writ for the redress of respondent’s grievance are primarily based on disputed facts those said to have affected result of the election of the post of Chairman of the Union or in other words has made consolidation of result as per provision 39(5) of the Rules as well as the declaration on the basis thereof by the respondent No. 6. In the instant case facts alleging which legality of the declaration of election result has been challenged are undoubtedly an election dispute and that in Part-Ill of the Rules provision has been made for adjudication of such dispute by the election tribunal constituted under that Part.  
 
14. In the case of AFM Shah Alam reported in 41 DLR (AD) 68 this Division has observed-
 
“Reading the entire law and the rules we have come to this conclusion that the real and larger issue is completion of free and fair election with rigorous promptitude. Hence, election being a long, elaborate and complicated process for the purposes of electing public representatives it is not possible to lay down guidelines by any Court because all the exigencies cannot be conceived humanly nor the vagaries of people contesting the election can be fathomed. In a dispute the issue is to be raised and evidence adduced for adjudication by a competent Tribunal. This function has been given to the Election Tribunal and to nowhere else. The Election Commission has been given power to decide certain matters but such enquiry will not come within the purview of judicial enquiry because the power to decide judicially is different from deciding administratively. By taking resort to extraordinary jurisdiction for a writ the High Court Division will be asked to enter into a territory which is beset with the disputed facts and certainly by well-settled principles it is clear a writ Court will not enter into such controversy.”
 
And then has held,
 
“(1)....................................................................
 
(2)......................................................................
 
(3) The jurisdiction of the High Court Division under Article 102 of the Constitution cannot be invoked except on the very limited ground of total absence of jurisdiction (coram non-judice) or malice in law to challenge any step in the process of election including an order passed by the Election Commission under Rule 70 because:  
(a) the real and larger issue of complication of free and fair election with rigorous promptitude for timely emergence and functioning of elective bodies must take precedence over settlement of private disputes.  
(b) all election disputes must wait pending completion of the election and be taken to the special forum created under the Election Law itself for their resolution.  
(c) almost invariably there will arise dispute over facts which cannot and should not be decided in an extraordinary and summary jurisdiction of writ.”
 
15. In the background of the facts alleged by the respondent No.1 the High Court Division was in error in entertaining the dispute which was an election dispute and further was in error in adjudicating the matter involving seriously disputed facts and that requiring adjudication of the same through the elaborate procedure of collection of evidence other than procedure of adjudication upon the affidavit evidence.
 
16. Now there remains the consideration of the other submission of the learned Counsel for the appellant that the High Court Division was in error in holding sub-rule (4) of Rule 39 of the Rules mandatory without mentioning in what respect the said sub-rule is mandatory, either to the counting of the votes or to the presence of the contesting candidates and their election agents or polling agents or that mandatory in respect of both. Sub-rule (4) of Rule 39 of the Rules reads as:
 
“When the ballot papers for Chairman contained in the ballot box or boxes have been scrutinised, the Presiding Officer shall, in the presence of the contesting candidates, and their election agents or polling agents as may be present, count separately the valid votes cast in favour of such candidates and prepare a statement in Form ‘K’ and, with signature of the contesting candidates or their election agents or polling agents, send the same to the Returning Officer’.
From the reading of the provision of sub-rule (4) it is seen:
(a) at first ballot papers for Chairman in the ballot box or boxes are to be scrutinised,  
(b) thereafter Presiding Officer shall count separately the valid votes cast in favour of the candidates for the post of Chairman in presence of the contesting candidates, or their election agents or polling agents as may be present” and that.  
(c) “prepare a statement in Form ‘K’ and, with signature of the contesting candidates or their election agents or polling agents, send the same to the Returning Officer”.
 
17. It was the contention of the respondent No.1 that on the day of repolling, i.e. on 27-12- 1997, in the two centres namely, Aloka Government Primary School Centre and Noapur Free Primary School Centre, there was disturbance a rigging of votes by the appellant but in spite of that in collusion with the appellant Presiding Officer counted votes and upon preparing statement in Form ‘K’ sent the same to the Returning Officer without taking signature of the polling agents in the said statement or in other words in the result sheet in violation of provision of 39(4) of the Rules and that the Returning Officer thereupon consolidated the result of all the polling centres, including the polling centres where re-poll was held, in Form ‘U in the light of the statements in Form ‘K’ and, as such, consolidation of the result of the candidates for the post of Chairman of the Union in question so made was not legal and consequently, the declaration of the Returning Officer declaring the pellant elected Chairman on the basis of consolidated result.  
 
18. It is seen from the provision of sub-rule (4) of rule 39 of the Rules that the same requires in mandatory manner the Presiding Officer to count separately the valid votes cast in respect of the Chairman candidate (s). The Presiding Officer has no other but to count the votes at the polling centre unless question of safety and security of the personnel in charge of holding election at the centre or that safety as well as security of ballot box or boxes or that of the scrutinised ballot papers is involved. The word ‘shall’ in the sub-rule, as it appears to me, has made obligatory counting of votes by the Presiding Officer after scrutiny of the ballot papers in the ballot box or boxes. After the voting is over it is a ‘must’ for the Presiding Officer to complete counting of votes except in the case or in a situation mentioned hereinbefore.
 
19. Now the question is, has the provision of the sub-rule in question made it obligatory because of the word ‘shall for the Presiding Officer to count the votes in presence of the contesting candidates and their election agents or polling agents ‘as may be present’. The provision in the sub-rule is that counting of votes ‘shall’ be made in presence of the contesting candidates and their election agents or polling agents ‘as may be present’. So the provision of the sub-section provides for, in the given situation, counting of votes in presence of either the contesting candidates or their election agents or polling agents. The provision of the sub-section postulates an ideal or that a guaranteed Situation.  
 
20. But in a situation or circumstance other than has been postulated in the sub-rule is there an element of ‘must’ or ‘shall’ as to the counting of votes by the Presiding Officer in presence of the contesting candidates and their election agents or polling agents as the matter of presence of said persons or one of such persons at the time of counting is predicated by the expression ‘as may be present”. Thus the provision in the sub-rule contemplates that there shall be counting of votes by the Presiding Officer in presence of the candidates or their election agents or polling agents if they of their own volition are present, but not converse or, in other words, Presiding Officer shall not count v6tes if for one or more exigencies or vagaries of candidate(s) and his/their election agent(s) or polling agent (s) chooses or choose not to be present or, in other words, remain absent at the time of counting or withdraws in the midst of counting. A situation of the one stated therein before or that a situation of absence of candidate (s) and his or their election agent (s) or polling agent (s) can altogether be not ruled out for more than one exigencies or vagaries of the said person or persons and keeping such a situation in view, it appears, the legislature has used the expression “as may be present” as to matter of counting of votes in presence of candidates or their election agents or polling agents. 
 
21. The next question would the statement in form ‘K’ prepared by the presiding officer in the light of counting of votes would be no statement as contemplated by the sub-rule because of signature of the candidate (s) and his or their election agent (s) or polling agent (s) or that because of non- signing of the statement in Form “K” by contesting candidate (s) and his/their election agent (s) or polling agent (s) and that would the result of the votes secured by Chairman candidates consolidated in Form ‘L’ by the Returning Officer be invalid since the said consolidation has been from the statement in Form ‘K’ which were or was not signed by the candidate (s) and his/their election agent (s) or polling agent (s). Since the question of obtaining signature by the Presiding Officer in Form ‘K’ would come when the candidate (s) and his/their election agent (s) or polling agent (s) remains present at the time of counting of votes as well as till the time of obtaining of signature when the statement in Form ‘K’ is prepared by the Presiding Officer and he calls upon the candidate (s) and his or their election agent (s) or polling agent (s) to sign the statement in Form ‘K’. So, in a case where candidate (s) and his/their election agent (s) or polling agent remains absent in his or their exigencies or vagaries at the time of counting of votes and the Presiding Officer prepares statement in Form ‘K’ in the said situation or circumstance the same wou1d not become invalid nor can it be said Presiding Officer illegally prepared the statement in Form ‘K’ and, as such, if a statement is prepared by the Returning Officer in Form ‘L’ as per statement in Form ‘K’ of the kind mentioned herein above the same would not become invalid or in others it cannot be said that the Returning Officer prepared the statement in Form ‘L’ from spurious or unauthorised statement in Form ‘K’.  
 
22. There is also a question what Presiding Officer shall do in a case where contesting candidate or candidates and their election agent (s) or polling agent (s) is/are absent because of their exigency/exigencies or vagary/vagaries. In such a situation should the Presiding Officer count the valid votes of the contesting candidates, or not and if he counts the votes in the absence of the contesting candidate (s) and his or their election agent (s) or polling agent (s) and that without obtaining the signature of the contesting candidate (s) and his or their election agent (s) or polling agent (s) sent the statement prepared in Form ‘K’ to the Returning Officer would that be an invalid statement and that would the Returning Officer reject such statement or statements at the time of consolidating the valid votes in Form ‘L’ on the basis of statement (s) in Form ‘K’. It is seen in sub- rule 4 of rule 39 of the Rules that Presiding Officer is required to count valid votes of the contesting candidates in their presence and their election agents or polling agents “as may be present”. The expression ‘as may be present’ relating to the presence of contesting candidates, their election agents and polling agents clearly shows that in a case where the contesting candidates and their election agents and polling agents are not present the Presiding Officer is not debarred from or, in other words, authorised to count the votes and in a situation as stated hereinbefore if the Presiding Officer sent the statement prepared in Form ‘K’ to the Presiding Officer without obtaining signature of the contesting candidates (s) and his/their election agent (s) or polling agent (s), in my view the statement so sent by the Presiding Officer to the Returning Officer cannot be considered invalid one and that the Returning Officer while consolidating the valid votes in Form ‘L’ in the light of the statement (s) in Form ‘K’ would not be authorised in law to exclude the valid votes in the statement in Form ‘K’ sent to him without obtaining signature of contesting candidates and their election agents or a polling agents because of circumstances stated above.  
 
23. The construction that has been put by the High Court Division as regard the provision of sub-rule (4) of rule 39 of the Rules if accepted as correct in that case there would be a disasterous situation in completing the process of election in that if the candidate (s) and his or their election agent(s) or polling agent (s) for any reason suiting his or their exigency/ exigencies or vagary/vagaries considers to remain absent at the time of counting of the votes as well as at the time of preparation of the statement in Form ‘K’ or in one of the cases and in that situation signature of the candidate(s) or his/their election agent(s) or polling agent(s) could not be obtained would result in frustration of the whole process of election and that there may be a situation of never ending of the process of election. The expression “as may be present” clearly shows that if the candidate(s) or his or their election agent(s) or polling agent(s) is/are present at the time of counting then the Presiding Officer shall count the valid votes in his or their presence and prepare the statement in Form ‘K’ and thereupon obtained signature of one of them i.e. either of the contesting candidate or his election agent or polling agent is not present of his exigency or vagary the Presiding Officer would not be required to postpone counting of the candidates, preparation of the statement in Form ‘K’ and sending the same to the Returning Officer.  
 
In the result this appeal is allowed without any as to costs. The judgment and order of the Court Division is set aside and the writ is recalled.  
 
Ed.