Muzaffar Hossain Vs. Md. Humayun Kabir and others, 48 DLR (AD) (1996) 59

Case No: Civil Petition for Leave to Appeal No.142 of 1995

Judge: Md. Ismailuddin Sarker ,

Court: Appellate Division ,,

Citation: 48 DLR (AD) (1996) 59

Case Year: 1996

Appellant: Muzaffar Hossain

Respondent: Md. Humayun Kabir and others

Subject: Election Matter,

Delivery Date: 1995-8-13


Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ 
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J
 
Muzaffar Hossain
……………… Petitioner
Vs.
Md. Humayun Kabir and others
……………….Respondent
 
Judgment
August 13th, 1995
 
Union Parishad (Election) Rules, 1983
Rules 37-39 & 70
In the absence of any justification, recounting of ballots should not have been ordered, in the absence of any prayer for doing it immediately after the polling. .. (8)
 
Case Referred to-
Md. Shajahan vs. Md. Sadeq and another, 38 DLR (AD) 275.
 
Lawyers Involved:
NH Khondker, Advocate-on-Record— For the Petitioner
Not Represented—Respondents
 
Civil Petition for Leave to Appeal No.142 of 1995
(From the judgment and order dated 14 November 1994 by the High Court Division in civil Revision No. 3037 of 1995)           
 
JUDGMENT
Md. Ismailuddin Sarker J:
 
This petition for leave to appeal is by one of the defeated candidates petitioner and other candidates of the Union went to for election to the Office of Chairman of No.10 Tamtu Union Parishad held on February 3, 1992 against the judgment and order dated November 14, 1994 passed by a Single Judge of the High Court Division in Civil Revision No.3037 of 1993 making the Rule absolute, after setting aside the judgment and order dated October 31, 1993 passed by the Election Appellate Tribunal and District Judge Chandpur in Election Tribunal Appeal No.6 of 1993 reversing the judgment and order of the Election Tribunal and Assistant Judge in Election Tribunal case No. 1 of 1993.
 
2. The petitioner filed the Election Tribunal Case No.8 of 1992 before the Election Tribunal and the First Court of Assistant Judge, Chandpur, challenging the result of election of respondent No.1 as Chairman of No.10 Tamtu Union Parishad under Police Station Shahrasti, District Chandpur, on the allegations, inter ailia, that the petitioner and respondent Nos. 1-6 contested for the Office of Chairman of the said Union Parishad held on February 3, 1992. There are three Wards of the said Union Parishad and there were in all 7 polling centres amongst which the petitioner alleged malpractice in two centres, namely, Waruk High School Centre under Ward No.2 and Dopolla Janata High School Centre under Ward No. 3. It is alleged by the petitioner in the election petition that in Waruk High School Centre which is the own Centre of respondent No.1, he took undue advantages in collusion with the Presiding Officer and his Staff of that Centre and managed to have cast several hundreds of votes of dead persons, persons living outside the country and different places out of the locality by way of forgery and false personation. As a result of which the petitioner got 651 votes while respondent No.1 got 1544 votes. Similarly, respondent No.1 adopted corrupt and illegal practices in Dopolla Janata High School Centre where the petitioner’s 100 valid votes were destroyed and this 100 valid votes were illegally and fundamentally added in favour of respondent No.1 in collusion with the Presiding Officer. On February 4, 1992 the Petitioner and other candidates of the Union went to the office of the Returning Officer to collect the result of the election. The petitioner came to learn that respondent No.1 was declared to be elected as Chairman of the said Union Parishad illegally. The petitioner further alleged that if the used and unused  ballot papers and counter foils of the ballot books along with the officially used voters’ lists and other relevant papers in respect of the election of the said two Centres are called for and examined  on recounting of the votes by the Tribunal it would be found that respondent No.1 in collusion with the Presiding Officer by corrupt and illegal practices managed to show more votes in his favour which  materially affected the result of the election and he managed to get himself illegally elected as Chairman of the said Union Parishad against the petitioner. After the publication of the result of the election in the Official Gazette on March 11, 1992, the petitioner filed the aforesaid case praying for examining the ballot papers along with the connected papers and to recount the ballots of those two Centres and to declare the election of Chairman held on February 3, 1992 illegal and to direct re-election in those two Centres, after setting aside the election in those two Centres on the ground of corruption and malpractice. 
 
3. Respondent No. 1 contested the election petition by filing a written objection denying all the material allegations made in the election petition and contending, inter alia, that the election was held in a peaceful manner, that there was no rigging as alleged by the petitioner and that after proper counting of votes he was duly declared as elected Chairman of the said Union Parishad. It has been further mentioned in the written objection that in Waruk High School Centre out of 4,476 votes 2.477 votes were cast wherein the petitioner secured 451 votes and respondent No.1 secured 1644 votes. At Dopolla Janata High School Centre out of 2048 only 1220 votes were cast out of which the petitioner secured 371 votes and respondent No.1 secured 528 votes.
 
4. At the trial the petitioner examined six witnesses including himself and respondent No.1 examined four witnesses including himself in support of their respective cases and the Election Tribunal on consideration of the evidence on record dismissed the election petition by his judgment and order dated September 8, 1992. On appeal the learned District Judge and Election Appellate Tribunal, Chandpur, by his judgment and order dated April 27, 1993 allowed the appeal, setting aside the judgment and order passed by the Election Tribunal and sent the case back on remand to the Election Tribunal with a direction to recount the ballot papers of Waruk High School Centre and Dopolla Janata High School Centre. On receiving the case back on remand it was re-numbered as Election Tribunal Case No.1 of 1993. Thereafter on May 23, 1993 in presence of both the parties and also their Advocates the Election Tribunal opened the gunny bags containing the ballot papers of those two centres and after recounting the ballot papers and considering the other evidence, the Election Tribunal by its judgment and order dated May 31, 1993 dismissed the election petition.
 
5. On appeal by the petitioner being Election Appeal No.6 of 1993, the learned District Judge and Election Appellate Tribunal, Chandpur, by his judgment and order dated October 31, 1993 allowed the appeal declaring the petitioner as the Elected Chairman of the said Union Parishad. Being aggrieved by the aforesaid judgment and order of the Election Appellate Tribunal, respondent No.1 moved the High Court Division in revision and obtained the above Rule and a learned Single Judge of the High Court Division by the impugned judgment and order dated February 14, 1994 made the Rule absolute and thereby sustained the election of respondent No.1 as the Chairman of the said Union Parishad.
 
6. Mr. NH Khondaker, learned Advocate on Record appearing on behalf of the petitioner, has submitted that the learned Judge of the High Court Division has committed an error of law in making the Rule absolute relying upon the decision of this Division in the case of Md. Shajahan vs. Md. Sadeq and another reported in 38 DLR (AD) 275 in as much as the instant case is distinguishable from the said reported case.
 
7. It is further submitted that in view of findings of the Election Appellate Tribunal, after a careful consideration of the pleading and scrutiny the evidence, the learned Judge of the High Court Division was not justified in reversing the decision of the Appellate Tribunal.
 
8. It appears from the judgment of the High Court Division that admittedly no written prayer was made before the Presiding Officer for recounting of the ballot papers on the allegation of any malpractice. The High Court Division also noticed that in the application dated February 4, 1992 filed by the petitioner before the Returning Officer no objection was raised regarding the alleged double seals on a large number of ballot papers. In that view of the matter, the learned Judge of the High Court Division after quoting the relevant the judgment of this Division in the case reported in 38 DLR (AD) 275 rightly found that the petitioner failed to show any valid ground for recounting of votes as there was nothing to show that from the very inception the petitioner by filing any objection to the Presiding Officer or to the Returning Officer prayed for recounting of ballots or that the election was materially affected due to corrupt practice of violation of any Election Rules. The learned Judge, therefore, rightly found that in the absence of any justification, recounting of ballots should not have been ordered, in the absence of any prayer for recounting immediately after the polling before the Presiding Officer. The law laid down by this Division in 38 DLR (AD) 275 is clearly applicable to the present case. We, therefore, reject the submission of Mr. N H Khondaker in this respect. In view of the decision of this Division the learned Judge rightly set aside the judgment and order of the Election Appellate Tribunal. The petition is, therefore dismissed.
 
Ed.