Shah Alam Mollah (Md) Vs. Election Commission, 42 DLR (AD) (1990) 73

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
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rah­man J
A.T.M. Afzal J
 
Shah Alam Mollah (Md)
........................Appellant
Vs.
The Election Commission Sher-e-Bangla Nagar, Dhaka and ors
……..............Respondents
 
Judgment
April 31, 1989.
 
The Local Government (Union Parishads) Election Rules, 1989
Rules 38-43
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)
 
Lawyers Involved:
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).
 
JUDGMENT
 
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.
 
Ed.