Nazem Uddin Vs. Election Tribunal and Others, 53 DLR (AD) (2001) 17

Case No: Civil Appeal No. 116 of 1999

Judge: Kazi Ebadul Hoque,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,,

Citation: 53 DLR (AD) (2001) 17

Case Year: 2001

Appellant: Nazem Uddin

Respondent: Election Tribunal

Subject: Election Matter,

Delivery Date: 2000-7-9

Supreme Court
Appellate Division
(Civil)
 
Present:
Bimalendu Bikash Roy Choudhury J
Mahmudul Amin Choudhury J
Kazi Ebadul Hoque J
 
Nazem Uddin
...............................Appellant
Vs.
Election Tribunal & Others
...............................Respondents 
 
Judgment
July 9, 2000
 
The Union Parishad (Election) Rules, 1983
Rule 45  
The Local Government (Union Parishad) Ordinance, 1983
Sections 26 and 29 
(i) In the instant case new facts having not been introduced and by amendment facts already stated having been clarified and made explicit and the nature and character of the election petition having not been changed the amendments can not be struck down. ……………………(11)
(ii) The High Court Division should not entertain writ petitions against interlocutory orders passed by the Election Tribunal in the interest of speedy disposal of election petitions ……….(13) 
 
Cases Referred to-
Sk Tabibar Rahman Vs Election Tribunal 1981 BLD 298;  Hosne Zaman vs. Election Tribunal, 38 DLR 435; Zulfiquar Ali Bhutto vs. Bangladesh and others 41 DLR 379; Md. Mokbul Hossain vs. Shamsul Alam and others 14 BLD (AD) 232. 
 
Lawyers Involved: 
Salma Masud Chowdhury, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record- For the Appellant. 
Md. Aftab Hossain, Advocate-on-Record—For Respondent No. 2. 
Not represented—Respondent Nor. 1, 3-9. 
 
Civil Appeal No. 116 of 1999
(From the judgment and order dated 10-3-1999 passed by the High Court Division in Writ Petition No. 519 of 1999)
 
JUDGMENT
           
Kazi Ebadul Hoque J.
 
1. This appeal by leave at the instance of the elected Chairman is from judgment and order dated 10-3-1999 passed by a Division Bench of the High Court Division in Writ Petition No. 519 of 1999 discharging the Rule and upholding the order dated 30-7-1998 passed by the Election Tribunal Moheshkhali, Cox’s Bazar in Election Tribunal Case No. 1 of 1998 allowing an order of amendment. 
 
2. Appellant and respondent Nos. 2-7 contested the election for the office of Chairman Shaplapur Union Parishad held on 22-12-1997. In that election appellant was declared elected chairman securing highest votes of 2446, respondent No. 2 secured the next highest votes of 1742 and respondent No. 3 secured third highest votes of 1686. Respondent No. 2 filed an election petition before the Election Tribunal Moheskhali alleging that his co-villager respondent No. 3 a disqualified candidate was set up by the appellant to contest the election to adversely affect the chances of election of the election petitioner respondent No. 2 in spite of objection by him. Though his nomination paper was rejected by the Returning Officer on the grounds of his being loan defaulter of Sonali Bank and tax defaulter of Shaplapur Union Parishad the same was illegally allowed by the appellate officer. As a result in the said election appellant was elected chairman securing 2446 votes. Had respondent No. 3 a disqualified candidate not been allowed to contest the election respondent No. 2 would have secured much more votes than secured by him from his own ward and contiguous wards and would have been elected chairman. So he filed election petition on 5-3-1998 after the result of the said election was published in the official gazette on 22-2-1998, Appellant has been contesting the election petition by filing a written statement denying the allegations. Appellant also filed an application under Order 7 rule 11 of the Code of Civil Procedure for rejection of the election petition. Respondent No. 2 also filed an application for amendment of the Election Petition. By order dated 30-7-1998 prayer for amendment was allowed by the Election Tribunal. Being aggrieved by the same appellant filed Writ Petition No. 2567 of 1998 in the High Court Division and obtained a Rule. Respondent No. 2 contested the Rule by filing an affidavit-in-opposition. By the impugned judgment the Rule was discharged. 
 
3. High Court Division after considering the amendment with reference to the statements made in the election petition held that amendment in paragraph 8 of the election petition is nothing but reiteration of the statements already made in the election petition and amendment made in the prayer portion is superfluous and not necessary because the election petitioner has already prayed for relief that the election as a whole is void and thereby no contravention of the provision of rule 45 of the Election Rules has been committed. 
 
4. Being aggrieved by the same appellant filed the petition for leave to appeal and obtained leave on 16-8-1999 to consider the following submissions:
 
“That the learned Judges of the High Court Division erred in law in not holding that the application for amendment filed long after 30 days as provided in Rule 44 of the Union Parishad Election Rules, 1983 was illegally allowed by the Election Tribunal on 30-7-98. She also submits that by amendment the relief sought for that the result of the election as a whole was void was violative of Rule 45 (a) and (b) in that in an election Petition reliefs both under Rule 45 (a) and (b) of the Rules cannot be prayed for.” 
 
5. Learned Advocate for the petitioner relying on the decisions of the High Court Division in 1981 BLD 298, 38 DLR 435 and 41 DLR 379 submitted that by the amendment in paragraph 8 of the election petition new facts have been introduced changing the nature and character of the election ion which is not permissible after the period of citation for filing the election petition. She also submitted that amended prayer portion is in violation of the provisions of rule 45 of the Union Parishad Election Rules. 
 
6. In the election petition election petitioner respondent No. 2 alleged that respondent No. 3 also is a resident of the same village and ward with him n he was loan defaulter of Sonali Bank and tax defaulter of Shaplapur Union Parishad at the time of giving nomination paper and as such, his nomination paper was rejected by the Returning Officer. But his appeal against the same was illegally allowed by till appellate officer at the instance of the appellant who had set up the respondent No. 3 to reduce the vote and chances of election of the respondent No. 2 in the election. Had he not been illegally allowed to contest the election, respondent No. 2 would have got the majority votes of Ward Nos. 8 and 9 would have won in the election. In paragraph 8 of the election petition by amendment it was stated that respondent No. 3 was a disqualified candidate and as such 1686 votes got by him have been destroyed under the doctrine of thrown away and those votes did not reflect the public opinion. Since respondent No. 2 already stated in the election petition that respondent No. 3 was a disqualified candidate and had he not contested the election respondent No.1 would have got the majority votes in Ward Nos. 8 and 9 and would have been elected Chairman appellant would not have won the election Court Division held that amendment in paragraph of the election petition is nothing but reiteration statements already made in the election petition. 
 
7. In paragraph 11 of the election petition it has been alleged that chance illegally given to respondent No. 3 to contest the election materially affect the result of the election and as such, legality and validity of the election was affected an the election is liable to be declared void as a who! In the prayer portion of the election petition originally prayer was for declaring election of appellant as chairman void as a whole which wad not in conformity with the averments made ii paragraph 11 of the election petition. By the amendment entire election of the chairman as whole has been sought to be declared void. High Court Division found that the amendment in the prayer is superfluous and not necessary. 
 
8. In the case of Sk. Tabibar Rahman Vs Election Tribunal 1981 BLD 298 it was held:
 
“The amendment allowed caused a fundamental change in the nature and character of the election petition. In the original election petition there was no allegation that there was any irregularity - illegality in the counting of ballot paper Amendment allowed appears to be not proper.” 
 
9. In the case of Hosne Zaman vs. Election Tribunal, 38 DLR 435 it was, held:
 
“The respondents wished to introduce a fresh fact alleging a substantive illegality in the counting of votes in Ward No. 2. Such kind of amendment cannot be allowed to relate back to the original date of filing of the election, because such averments ‘are practically in the nature of filing a fresh election petition on new allegations. The Election Tribunal surely has the power to allow the parties to amend their pleadings if it deems it fair and proper but it has no power to relate back any amendment to the original date of filing the election petition.” 
 
10. In the case of Zulfiquar Ali Bhutto vs. Bangladesh and others 41 DLR 379 it was held:
 
“In the instant case by the amendment petition opposite party No. 4 introduced fresh facts and prayer for different relief long after 30 days of the publication of the result of the election in the official gazette. As such the Election Tribunal has no authority to allow such amendment to give retrospective effect to the election long after the period, of limitation prescribed by rule 44 of the said rules.” 
 
11. In the above decisions High Court Division struck down the amendment on the ground that new facts have been introduced by amendment changing the nature and character of the election petition and such amendment cannot be allowed after expiry of the time for filing the election petition. In the instant case new facts having not been introduced and by amendment facts already stated having been clarified and made explicit and nature and character of the election petition having not been changed the amendments cannot be struck down. 
 
12. High Court Division relying on the case of Md. Mokbul Hossain vs. Shamsul Alam and others 14 BLD (AD) 232 observed that the appellant challenged the order of amendment for delaying disposal of the election petition resulting in frustrating the very purpose of setting up of Election Tribunal. It has been noticed that elected Chairman takes resort to dilatory tactics to frustrate the election petition challenging his election so as to continue in office by moving the High Court Division against interlocutory orders pass by the Election Tribunal could be taken in the appeal as has been done in the case of Sk Tabibar Rahman vs. Election Tribunal. High Court Division should not entertain writ petitions against interlocutory orders passed by the Election Tribunal in the interest of speedy disposal of election petitions which is the intention of legislature and such grievances should be postponed to be decided in appeal against the final order of the Election Tribunal. 
 
13. In the above facts and circumstances we find no merit in the submissions of the learned Advocate for the appellant and no illegality in the impugned judgment to interfere with the same. 
 
In the result the appeal is dismissed without any order as to costs. 
 
Ed.