Shah Alam Patwari Vs. Md. Siddiqur Rahman Bhuiyan, 53 DLR (2001) 390

Judge: Md. Abdur Rashid ,

Court: High Court Division,,

Advocate: Mainul Hosein,,

Citation: 53 DLR (2001) 390

Case Year: 2001

Appellant: Shah Alam Patwari

Respondent: Md. Siddiqur Rahman Bhuiyan

Subject: Election Matter,

Delivery Date: 2001-5-16

Supreme Court of Bangladesh
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
Md. Abdur Rashid J
 
Shah Alam Patwari (Md)
……............Petitioner
Vs.
Md. Siddiqur Rahman Bhuiyan and others
…………Opposite Parties
 
Judgment
May 16, 2001.
 
Union Parishad Election Rules, 1983
Rules 34 & 38
Code of Civil Procedure (V of 1908)
Section 115
In the absence of any materials before it, and there being no objection raised at the time of recount before the appropriate forum, this Division cannot hold that the Election Tribunal did not recount votes in accordance with the rules nor accept any of the invalid votes as found by the Election Tribunal as valid.
 
Cases Referred To-
Moulana Delwar Hossain Saydee Vs. Sudhanshu Shekhar Halder and others, 52 DLR (AD) 20; Nur Hossain Vs. Election Tribunal, Cox’s Bazar, 27 DLR (AD) 117.
 
Lawyers Involved:
Mainul Hosein with Md. lqbal Malik and Mozammel Hoque, Advocates — For the Petitioner.
Shafique Ahmed with Kazi Kamrul Alam, Advocates— For the Opposite Party No.1.
 
Civil Revision No. 2049 of 2001.
 
JUDGMENT
 
Md. Abdur Rashid J.
 
1.  This Rule was obtained upon making a revision application under section 115 of the Code of Civil Procedure against judgment and order dated 20-03-2001 passed by the Additional District Judge, 4th Court at Comilla in Election Appeal No.01 of 2000 affirming those dated 24-09-2000 passed by Senior Assistant Judge, Barura and the Election Tribunal at Comilla in Election Tribunal Case No. 01 of 1998.
 
2. This Rule arises out of an election of the Chairman of No.3 Uttar Khoshbash Union Parishad under PS Barura held on 1-12-97. In the election, AHM, Khaleque since deceased, was elected Chairman.
 
3. Opposite party No.1 Siddiqur Rahman Bhuiyan challenged the election of said AHM Khaleque by making an election petition before the above Election Tribunal on various grounds of illegal and corrupt practices. He also prayed for recount of the votes. In the election, five candidates including the revision-petitioner and the election-petitioner contested. Said AHM Khaleque opposed the election petition by filing a written objection. Similarly, this revision-petitioner who was opposite party No.3 in the election petition, also filed an objection. Pending hearing of the election petition, AHM Khaleque, the returned candidate died and his name was expunged from the election petition by an order dated 25-01-99. But ultimately, none of the opposite parties in the election petition contested the election petition and the Election Tribunal dismissed the same ex parte against all by its order dated 14-11-99. The prayer for recount was also rejected.
 
4. The election-petitioner then took an appeal therefrom to the District Judge at Comilla. The appeal was heard and allowed. The order of the Election Tribunal was set aside and the case was sent back on remand to the Election Tribunal with a direction for fresh decision after recount of the votes in four centers, namely, Dewannagar Non-Government Primary School, Shahpur Government Primary School, Kemtali Government Primary School and Adampur Forkania Madrasa.
 
5. Against this order of remand, the revision-petitioner unsuccessfully made an application under Order 41 rule 21 of the Code of Civil Procedure for rehearing of the appeal in Miscellaneous Case No.10 of 2000 in the Court of District Judge at Comilla. Then, he also moved this Division in revision against the order of remand and obtained a Rule in Civil Revision No. 1756 of 2000 and the Rule was also discharged. So, the order of recount stood confirmed.
 
6. Thereafter, the Election Tribunal on 30-04-2000 recounted the votes. After the recount, the Election Tribunal found that 3021 votes in total were cast in those four centers and out of those votes, 309 votes were invalid. Besides, the Tribunal found that the returned candidate got 722 valid votes and 1731 ambiguous votes while the election-petitioner got 1 valid vote and 53 ambiguous votes. The Election Tribunal upon such recount has held that if those ambiguous votes are excluded or added to the valid votes obtained by the returned candidate and the election-petitioner, in any case, the returned candidate received less votes than the election- petitioner, and accordingly, it allowed the election petition and declared the election-petitioner election Chairman of the Union Parishad by its judgment and order dated 24-09-2000. The Election Tribunal also cancelled the election of the returned candidate AHM Khaleque and set aside the election of the revision-petitioner in the by-election held in the meantime.
 
7. It may be noted here that challenging the notification for holding by-election for the office of Chairman of the said Union Parishad, the election-petitioner moved this Division in writ jurisdiction in Writ Petition No. 4304 of 1999 with prayer for stay of the holding of the by-election pending decision of the election petition. Rejecting the petition summarily by its order dated 21-11-99 this Division observed-
 
“…………………It is held that person elected in the by-elections will step into the shoes of the deceased Chairman, and he will be declared elected subject to the result of the election petition”.
 
8. Against this order of the Election Tribunal, this revision-petitioner, preferred an appeal before the District Judge at Comilla. On hearing the appeal, the learned Additional District Judge dismissed the appeal and affirmed the judgment and order of the Election Tribunal by the impugned judgment and order as stated above.
 
9. Mr. Mainul Hosein, the learned Senior Counsel appearing for the revision-petitioners submits that the Election Tribunal committed serious error of law in sorting the votes into invalid as well as into ambiguous votes. He also submits that the Election Tribunal was wrong to hold 1731 of the returned candidates as ambiguous for want of initial inside the official seal or any official mark. Secondly, he submits that in excluding of 309 votes as invalid from the total count the Election Tribunal neither gave any reason nor has shown which of the votes from which of the candidates were so declared invalid. He cited the decision in the case of Moulana Delwar Hossain Saydee Vs. Sudhanshu Shekhar Halder and others, 52 DLR (AD) 20.
 
10. Mr Shafique Ahmed, the learned Senior Counsel appearing for the election-petitioner, submits that even if the questioned ambiguous votes are not excluded and added to the valid votes of respective candidates, the election-petitioner is rightly found to have received 56 votes more than the regurned candidate AHM Khaleque. Secondly, he submits that 309 votes were rightly excluded from the count as invalid and the Election Tribunal is under no obligation to give any reason for each of such invalid votes as no objection was raised thereto at the time of recounting of votes. He also cited the decision in the case of Nur Hossain Vs. Election Tribunal, Cox’s Bazar, 27 DLR (AD) 117.
 
11. I have perused the revision application and the judgments and orders of the Court of appeal below and those of the Election Tribunal. I have also heard the learned Counsels at length.
 
12. I find, under section 29 of the Local Government (Union Parishad) Ordinance 1983, the decision of the District Judge in appeal is final and shall not be called in question in or before any Court. In view of such provision, the jurisdiction under section 115 of the Code of Civil Procedure is very limited for me to see only whether the Court of appeal below has committed any error of law which has resulted in failure of justice.
 
13. The learned Additional District Judge by his independent consideration of the materials on record has concurred the findings of the Election Tribunal that the returned candidate got 722 valid vote and 1731 defective votes while the election- petitioner got 1 valid vote and 53 defective votes in those four centers. In those four centers 3021 votes in total were cast out of which 309 votes were excluded as invalid votes from the total count. Even, after adding those questioned votes to the valid votes of those four centres with the valid votes of the rest six centres, the Court of appeal below also found that the returned candidate got in total 2676 votes while the election-petitioner got 2732 votes and he accordingly, affirmed the decision of the Election Tribunal holding that the election-petitioner got 56 votes more than the returned candidate late AHM Khaleque. This is the factual position.
 
14. Now, let me consider the submissions of learned Counsels. It is true that at the recount of the votes, the Election Tribunal sorted ambiguous votes of individual candidates and separated them from the total invalid votes from the count. The Election Tribunal found those votes ambiguous for absence of any initial or official mark inside the official seal.
 
15. Rule 34 of the Union Parishad (Election) Rules, 1983, says-
 
(1) When a voter presents himself at the polling station to vote, the Presiding Officer shall, after satisfying himself about the identity of the voter, issue to him two ballot papers—
(a) one for members; and
(b) one for Chairman.
(2) Before the ballot papers are issued to a voter—
(a) ……………. …………. ………………
(b) ……………. …………. ………………
(c) ……………. …………. ………………
(d) the ballot papers shall on their back be stamped with the official mark.
(e) ……………. …………. ………………
(f) ……………. …………. ………………
(3) The Official mark shall be kept secret until the commencement of the poll.
 
Regarding count, Rule 38 of the said Rules reads-
 
(1) ……………. …………. ………………
(2) the Presiding Officer shall—
(a) open the ballot box or boxes and count the entire lot of ballot papers taken out therefrom; and
(b) open the packet labeled “challenged ballot papers” and include the ballot papers therein in the count.
(3) For the purpose of counting ballot papers, the Presiding Officer shall—
(a) arrange separately the ballot papers in respect of members and of Chairman.
(b) separate the ballot papers which are unambiguously marked in favour of a contesting candidate from those of the invalid ballot papers which bears—
(i) no official mark; or
(ii) ……………. …………. ………………
(ii) ……………. …………. ………………
(iv) ……………. …………. ………………
(v) ……………. …………. ………………
(4) The Presiding Officer may recount the votes—
(a) on his own motion if he considers it necessary or
(b) upon the request of a contesting candidate or an election agent present at the count if, in his opinion, the request is not unreasonable.
 
Like the Presiding Officer, the Election Tribunal is also obliged to follow the above rules in the recount of the ballot papers. The Election Tribunal following the above rules shall separate the unambiguously marked ballot papers i.e. valid votes from the ambiguous ballots i.e. invalid votes. A ballot paper may be invalid for any of reasons as mentioned in clauses (i) to (v) of sub-rule 3 (b) of rule 38. In the recount, the Election Tribunal found as stated earlier that total votes cast in those four centres were 3021 and out of them, 309 votes were invalid. It also found that the returned candidate Mr. AHM Khaleque got 1731 ambiguous votes, the election-petitioner got 53 ambiguous votes and the revision petitioner got 49 ambiguous votes. Appellate Court called them defective votes. The Election Tribunal held those votes ambiguous as there was no initial or official mark in the official seal. The official mark has not been defined. The record does not show what was the official mark used in the poll under rule 34(3). Therefore, it cannot be said that the official seal found on those so-called ambiguous votes was not the official mark. In the circumstances, and in view of the decision in the case of Moulana Delwar Hossain Saydee, Mr. Mainul Hosein is correct that the Election Tribunal had no jurisdiction to exclude those votes as ambiguous from the final tally only for want of initial or official mark in the official seal.
 
16. But the Election Tribunal also counted the votes by adding those ambiguous votes with the valid votes received by the individual candidates in all the centres and came to a finding that the returned candidate late AHM Khaleque in total got 2,676 votes while the election petitioner got 2,732 votes. The revision petitioner received only 1918 votes in all. So, the Election Tribunal found no difficulty in declaring the election petitioner elected by a margin of 56 votes. Mr. Mainul Hosein submits that the Election Tribunal erred in law in excluding 309 votes as invalid from the count in those four centres in the absence of assigning any reason.
 
17. In the whole election proceeding, after filing of the written objection the revision petitioner was found absent. He did not contest the election petition. Even after he failed to get the order of remand of the District Judge for recount of the votes reversed up to this Division, he was not present at the recount. No objection was even raised from any quarter during the recount of the votes. Under the above rules, the Election Tribunal is empowered to exclude any of the ballots as invalid for any of the reasons as mentioned in clauses (i) to (v) of rule 38(3)(b) of the Election Rules, 1983. It is also not practically possible to give reason for every ballot found not valid for this or that reason under the above clauses. The finding of 309 votes as invalid in the recount was never challenged either before the Election Tribunal or before the Court of appeal below.
 
18. Exercising a limited jurisdiction under section 115 of the Code, I cannot entertain such a question for the first time in revision. In the absence of any materials before it, and there being no objection raised at the time of recount and/or before the appropriate forum, this Division cannot hold that the Election Tribunal did not recount votes in accordance with the above rules nor accept any of the invalid votes as found by the Election Tribunal as valid. The decision in the case of Nur Hossain is therefore squarely applicable in the case at hand. In the case, the Appellate Division held-
 
“In view of the allegations of improper and incorrect counting of ballot papers by the Presiding Officers, the Tribunal scrutinised the ballot papers and recounted them in the presence of the parties and their lawyer and then rejected certain ballot papers as being unambiguous or having been otherwise invalid and accepted those which were unambiguous following the provision of rule 40 (3) (b) of the Rules, 1973.”
 
In the above facts and circumstances and in view of the law, the exclusion of 309 votes as invalid from the total count in those four centres by the Election Tribunal and as was concurred by the Court of appeal below therefore does not suffer from any infirmity calling for any interference by this Division. So, the submission of Mr. Mainul Hosein has no substance.
 
19. In the result, the Rule is discharged. No order as to costs. The decision of the Appellate Tribunal affirming that of the Election Tribunal declaring the election-petitioner, Mr. Md. Siddiqur Rahman Bhuiyan elected Chairman of No.3 Khoshbash Uttar Union Parishad under the police station Barura in the District of Comilla is hereby upheld. Order of status quo granted at the time of issue of the above Rule on 24-06-2001 is hereby recalled and vacated.
 
Communicate this order at once.
 
Ed.