Case No: Civil Appeal No. 19 of 1989
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Dr. Kamal Hossain,,
Citation: 42 DLR (AD) (1990) 73
Case Year: 1990
Appellant: Shah Alam Mollah
Respondent: Election Commission
Subject: Election Matter,
Delivery Date: 1989-4-31
Supreme Court of Bangladesh
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Shah Alam Mollah (Md)
The Election Commission Sher-e-Bangla Nagar, Dhaka and ors
April 31, 1989.
The Local Government (Union Parishads) Election Rules, 1989
The appellant is not entitled to raise the question of repoll for the first time before the Appellate Division. Even if the question was raised before the High Court Division on the ground that there was no peaceful polling at the centre concerned, the High Court Division could not have embarked upon an enquiry to make a finding of fact as to truth or otherwise of the allegations made by the appellant. When the Election Commission directed consolidation and acceptance of the result as submitted by the Presiding officer, the High Court Division could not sit on judgment over it and direct repoll………………………(5)
Md. Joynul Abedin, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record.—For the Appellant.
Dr. Kamal Hossain, Senior Advocate instructed by Kazi Shahabuddin Ahmed, Advocate-on- Record.—Respondent No. 4.
Not Respondent—Respondent Nos. 1-3 & 5-6.
Civil Appeal No. 19 of 1989.
(From the judgment order dated 11.12.1989 passed by the High Court Division, Dhaka in Writ Petition No. 1314 of 1988).
A. T. M. Afzal J.
1. The appellant in this appeal, by leave, was a contestant along with respondents 4-6-for chairmanship of No.8 Munshirhat Union Parishad within Upazila Chauddagram, District Comilla. The election was held on 10.2.88. Dispute arose over election at the Munshirhat High School Centre in Ward No. 3 According to the appellant there was no peaceful election in the said centre but the Presiding Officer counted the votes and submitted a result in TA Form. At the instance of the appellant, the Election Commission held an enquiry through the Deputy Commissioner, Comilla and then directed the District Election Officer, Comilla to obtain the election results including the result of the Munshirhat High School Centre from the Returning Officer and send the same to the Election Commission. This order dated 2.7.88 (Anx. G to the Writ petition) was challenged by the appellant in Writ Petition No. 1314 of 1988. A rule Nisi was issued upon the respondents to show cause why the said order should not be declared to have been made without any lawful authority, etc. and further why respondent Nos. 1-3 should not be directed to hold fresh poll at Munshirhat High School Centre.
2. Respondent No.4 contested the rule by filing an affidavit-in-opposition.
3. It appears from the impugned Judgment that the only point raised for consideration was whether the Election Commission had authority to direct recounting of voles. On behalf of the respondent it was argued that the impugned order was not for recounting of voles but for consolidation of the results in DMA Form as submitted by the Presiding Officer in TA Form. The learned Judges took the view that the impugned order so far as it relates to the recounting of voles of Munshirhat High School Centre was passed without lawful authority and accordingly the rule was made absolute in part.
4. At the time of hearing of the leave petition the learned advocate for the appellant made submission for the proposition that the Election Commission ought to have directed a fresh poll at the aforesaid centre.
5. It does not appear from the impugned judgment that the appellant raised the question of re-poll in the High Court Division which was the second part of the rule. Objection was only taken to 'counting' or 'recounting' of the votes as was understood by the Court. Evidently, the appellant is not entitled to raise the question of re-poll for the first lime before us. Even if the question was raised in the High Court Division on the ground that there was no peaceful polling at the centre concerned, the High Court Division could not have embarked upon an enquiry to make a finding of fact as to the truth or otherwise of the allegations made by the appellant when the Election Commission directed consolidation and acceptance of the result as submitted by the Presiding Officer, the High Court Division could not sit on judgment over ii and direct a fresh poll on the prayer of the appellant.
6. In any view of the matter, there is no merit in this appeal which is, accordingly, dismissed without any order as to costs.