S.M. Fazlul Haque Manik Vs. Md. Habibullah Baher and others, 61 DLR (AD) (2009) 66

Case No: Civil Petition for Leave to Appeal No. 271 of 2007

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: A.S.M. Khalequzzaman,Mr. Abdur Razzaque Khan,,

Citation: 61 DLR (AD) (2009) 66

Case Year: 2009

Appellant: S.M. Fazlul Haque Manik

Respondent: Md. Habibullah Baher

Subject: Election Matter,

Delivery Date: 2007-10-3

 
Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Abdul Matin J
 
S.M. Fazlul Haque Manik
......Petitioner
Vs.
Md. Habibullah Baher and others
............Respondents
 
Judgment
October 3, 2007.
 
Constitution of Bangladesh, 1972
Article 102
Election Tribunal— Election Dispute— Re-counting of ballot papers— It is within the competence of the Election Tribunal to pass order in an appropriate case for recounting of ballot papers for the purpose of proper adjudication of the dispute. (7)
 
Case Referred To-
Ansaruddin Ahmed, Nasir Miah and others Vs. Senior Assistant Judge and Election Tribunal, Barguna and others 14 BLD (AD) 77.
 
Lawyers Involved:
Abu Sams Md. Khalequzzaman, Advocate-on-Record-For the Petitioner.  
Abdur Razzaque Khan, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record- For Respondent No.1.                      
Not represented- Respondent Nos. 2-7.                 
 
Civil Petition for Leave to Appeal No. 271 of 2007.
(From the judgment and order dated 07.02.2007 passed by the High Court Division in Writ Petition No. 2343 of 2005.)
 
JUDGMENT
 
Md. Abdul Matin J.
 
1. This petition for leave to appeal is directed against the judgment and order dated 07.02.2007 passed by the High Court Division in Writ Petition No.2343 of 2005 discharging the Rule.
 
2. The facts, in the background whereof writ petition filed, are that the respondent No.1 as the petitioner filed Election Dispute Case No. 01 of 2003 in the Court of Senior Assistant Judge, 3rd Court and ex-officio Election Tribunal, Gazipur for recounting the ballot papers. On 13.03.2005, the Election Tribunal allowed the application for recounting the ballot papers. The order dated 22.02.2004 reveals that the gunny bags containing the ballot papers were partly torn. The petitioner, therefore, contends that the impugned order allowing the application for recounting the ballot papers is illegal and cannot be sustained in law.
 
3. Challenging this order the petitioner moved the High Court Division under Article 102 of the Constitution of the People's Republic of Bangladesh and a Rule was issued upon the respondents to show cause as to why the impugned orders dated 01.03.2005 and 13.03.2005 passed by the learned Senior Assistant Judge, 3rd Court and ex officio Election Tribunal, Gazipur in election Dispute Case No.1 of 2003 and also the order dated 13.03.2005 for recounting the ballot papers as contained in Annexure-C to the writ petition should not be declared to be illegal and without jurisdiction and are of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
 
4. The High Court Division after hearing the parties discharged the Rule holding that recounting of ballot papers is permissible in law and in so holding the High Court Division relied  on the decision in  the case of Ansaruddin Ahmed, Nasir Miah and others Vs. Senior Assistant Judge and Election Tribunal, Barguna and others reported in 14 BLD(AD) 77= 46 DLR (AD) 181.
 
5. As against the judgment of the High Court Division the petitioner has filed this petition for leave to appeal.
 
6. Heard Abu Sams Md. Khalequzzaman, the learned Advocate-on-Record appearing for the petitioner and perused the judgment of the High Court Division and that of the trial Court and other papers on record.
 
7. It appears that the High Court Division has correctly held that the Election Tribunal is competent to order for recounting of the ballot papers for proper adjudication of the Election Tribunal Case. This finding of the High Court Division being based on correct appreciation of facts and law does not call for any interference by this court.
 
In view of our discussions made hereinabove we find no merit in this petition.
 
Accordingly the petition is dismissed.
 
Ed.