Syed A Jalil Vs. Mahbub Alam (Babul) and others, 46 DLR (AD) (1994) 96

Case No: Civil Petition for Leave to Appeal No. 2208 of 1993

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: M Shamsul Alam ,,

Citation: 46 DLR (AD) (1994) 96

Case Year: 1994

Appellant: Syed A Jalil

Respondent: Mahbub Alam (Babul)

Subject: Election Matter,

Delivery Date: 1993-7-4

Supreme Court of Bangladesh
Appellate Division
Shahabuddin Ahmed CJ
M H Rahman J
ATM Afzal J
Mustafa. Kamal J
Latifur Rahman J.
Syed A Jalil
Mahbub Alam (Babul) and others
July, 4th 1993.
Election Matter
Recounting— Before recounting of ballot papers evidence should be led for foundation for re-opening of the ballot papers. But a number of dates having been fixed for recording of evidence and the petitioner taken adjournments and remained absent once, the order for recounting cannot be held bad in law.
Cases Referred to-
27 DLR 594; 38 DLR 401.
Lawyers Involved:
AK Badrul Haq, Advocate, Supreme Court, instructed by Sharifuddin Chaklader, Advocate-on­-Record -For the Petitioner
M Shamsul Alam, Advocate, Supreme Court, instructed by Md. Aftab Hossain, Advocate-on­ Record - For the Respondent No. 1.
Not represented -Respondent Nos. 2-6.
Civil Petition for Leave to Appeal No. 2208 of 1993
(From the judgment and order dated 12.5.93 passed by the High Court Division in Writ Petition No. 749 of 1993).
Shahabuddin Ahmed CJ.
1. Petitioner is an elected Chairman of Bauphal Union Parishad, Patuakhali. His election, which was held in January 1992, was challenged by a contesting candidate, who is respondent No. 1 before us, in Election Petition Case No. 9 of 1992, before the Assistant Judge and Election Tribunal, Patuakhali. The Tribunal, by an order dated 24 April 1993, directed for recounting of ballot papers on 2 May 1993 in presence of all concerned including the Presiding Officers. This order was challenged before the High Court Division in Writ Petition No. 749 of 1993; but it was summarily dismissed by the High Court Division by an order dated 12 May 1993. Petitioner is now seeking leave to appeal from this order of the High Court Division.
2. Mr. AK Badrul Huq, learned Advocate for the petitioner, has contended that no evidence has yet been recorded in the Election case and no foundation for recounting has been established and, as such, the order for recounting is bad in law. In support of this contention he has referred to the decisions reported in 27 DLR 594 and 38 DLR 401.
3. On perusal of the High Court Division's order, along with the order‑sheet of the Election case, we find that though the election petition was filed on 2 May 1992 no evidence could be recorded mainly because of the adjournments taken by respondent petitioner. Hearing of the case was to be held on 16 February 1993, but on this petitioner's prayer the hearing was first adjourned to 29.3.93 and then to 26.4.93. On the last mentioned occasion, this petitioner prayed for further adjournment but it was rejected. The Tribunal after perusing the Election­ petition and the written objection thereto, found election in all centres was held peacefully a matter over which there was hardly any dispute. But the Tribunal found that the main ground taken in the Election petition is that counting of votes was not properly made and that a verbal prayer for recounting of the ballot papers was made before the Presiding Officer concerned. The Tribunal, therefore, held that recounting of the ballot papers became necessary for determination of the dispute. The learned Judges of the High Court Division also found that recounting of ballot papers was the real bone of contention between the parties.
4. It is true that before recounting of ballot papers, which are confidential documents, preserved in proper custody, evidence should be led for preparing the foundation for reopening of the ballot papers. But in this case, a number of dates were fixed for recording of evidence; but this petitioner took adjournments twice and himself remained absent once. In these circumstances, the order of recounting cannot be held to be bad in law. However, in the matter of recounting of ballot papers the Tribunal must take adequate precaution against any malpractice; the Tribunal must see whether the ballot box was kept in proper custody from the time of its despatch by, the Presiding Officer till its final destination and whether the sealed bag containing the ballot packets, as well as the sealed ballot packets are in tact. In that connection evidence of competent witnesses including the Presiding Officers concerned should be recorded.
With these observations this petition is dismissed.