Syed Alam Mia Vs. Election Commission, 42 DLR (AD) (1990) 242

Case No: Civil Appeal No. 3 of 1990

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. Zakir Ahmed,,

Citation: 42 DLR (AD) (1990) 242

Case Year: 1990

Appellant: Syed Alam Mia

Respondent: Election Commission

Subject: Election Matter,

Delivery Date: 1990-3-28

 
Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed, CJ.
MH Rahman, J.
ATM Afzal, J.
Mustafa Kamal, J.
Latifur Rahman, J.
 
Syed Alam Mia
…………….......Petitioner
Vs.
Secretary, Election Commission Secretariat
…..…………...Respondents
 
Judgment
March 28, 1990.
 
The Union Parishad (Election) Rules, 1983
Rules 39(3)(4)(S) & 41
Out of the three wards, election held in two wards only. The statement in Form 'K' from the Presiding Officer of one of the Polling Stations (Ward No.1) was not received; so the Returning Officer had no scope to consolidate the statements of all the Presiding Officers. As such the declaration of one candidate as elected Chairman is without lawful authority. Consequently, the publication of the election of Chairman is also invalid. Election of members of Ward No. 2 & 3 not being connected with the remaining Ward No. 1, is valid. Even if election of members is separately published in the gazettes no purpose will be served as because chairman has not been declared elected. There should be no piecemeal Notification, one for Chairman and another one or two for the members. The impugned Notification is liable to be set aside as a whole. Fresh Notification may be made on completion of the election in Ward No.1……………(6 & 7)
 
Lawyers Involved:
Zakir Ahmed, Advocate in­structed by Md. Aftab Hossain, Advocate-on-Record — For the Appellant.
Shahid Alam, Advocate in­structed by Sharifuddin Chaklader, Advocate-on-Record—For the Respondent No. 5.
Not represented — Respondent Nos. 1 to 4 and 6 to 11.
 
Civil Appeal No. 3 of 1990.
(From the judgment and order dated 19.11.1989 passed by the High Court Division, Dhaka, in Writ Pe­tition No. 955 of 1989).
 
JUDGMENT
 
Shahabuddin Ahmed, CJ.
 
1. In this appeal by special leave a question of considerable public importance is involved. It is whether the result of election of both Chairman and Members of a Union Parishad can be published in the official Gazette when admittedly no election was held in one out of three Wards of the Union. This arises from an order of the High Court Division dated 19 November 1989 in Writ Petition No. 955 of 1989.
 
2. For electing a Chairman and nine members of Rajapalong Union Parishad, Cox's Bazar, an elec­tion was held on 10 February 1988. Election was held peacefully in two Wards namely, Ward No.2 and Ward No.3, but no election could be held in Ward No.1 where the poll was adjourned due to disturbanc­es. Repoll therein also could not be held for the same reason. Presiding Officers of Ward Nos.2 and 3 declared six members elected, three from each Ward. As to Chairman's election, the Presiding Officers forwarded the result to the Returning Officer and the latter declared one of the contesting candidates as elected Chairman of the Union without waiting for election in Ward No.1. He then forwarded the result to the Election Commission which got the result published in the official Gazette under a Notification dated 26 June 1989. This Notification was chal­lenged by the appellant, one of the member-candidates of Ward No.1 in the Writ Petition as re­ferred to seeking a declaration of nullity on the ground that law does not contemplate publication of result of any incomplete election.
 
3. Earlier one of the contesting candidates for the office of Chairman filed an Election Petition un­der section 25 of the Union Parishad Ordinance be fore the Election Tribunal and while that election petition was pending the Writ Petition was filed by this appellant and the Chairman-candidate. The High Court Division in view of pendency of the election petition dismissed the writ petition upon discharging the rule issued thereupon earlier. The appellant, member-candidate, who was not a party to the Election Petition, then obtained leave from us and filed this appeal.
 
4. Mr. Zakir Ahmed, learned Advocate, has appeared for respondent No.5, the contesting candidate who had been declared elected Chairman and whose election, along with that of the six members, has been published in the impugned Notification.
 
5. Facts as staled above are not disputed. The sum and substance of the contention of Mr. Zakir Ahmed is that without holding election for Chair­man in the remaining Ward, namely Ward No.1, the Returning Officer had no authority under Rule 39(5) of the Election Rules to declare any of the contesting candidates, namely respondent No.5, as elected Chairman of the Union Parishad, and consequently Chairman's election remaining incomplete the Notification of his election by the Election Commission is invalid. As to the publication of election of the six members from two Wards, contention of Mr. Ahmed is that this is also not contemplated in Rule 41 of the UP Election Rules which speak of publica­tion of results of the Chairman and all the elected members after completion of election since a Union Parishad can not be constituted without all the mem­bers and the Chairman. Mr. Shahid Alam contends that "there is no bar to publish the result of election partly under section 25 of the Union Parishad Ordinance".
 
6. As it appears, no election was held in one of the Wards of the Union, but the result of election for the whole Union has been published in the official Gazette. Both declaration and publication of the elec­tion have been challenged. In the case of Chairman's election Presiding Officers of all the Polling Sta­tions, ordinarily one Polling Station for each Ward, shall count the votes in favour of each candidate and prepare a statement in Form 'K' and send the same to the Returning Officer under Rule 39(4). The Return­ing Officer, on receipt of the statements in Form 'K' from all the Polling Stations, shall consolidate in Form 'L' the votes of each of the contesting candi­date and shall declare to be elected the contesting candidate who receives the highest number of votes. In this case the statement in Form 'K' from the Presid­ing Officer of one of the Polling Stations (Ward No.1) was not received; so the Returning Officer had no scope to consolidate the statements of all the Pre­siding Officers. As such the declaration of one candi­date as elected Chairman is without lawful authority. Consequently, the publication of the election of Chairman is also invalid.
 
7. As to election of members, the Presiding Officer of Polling Station is competent to declare to be elected the candidates who receive the highest number of votes under Rule 39(3). As such, declaration of the six members as elected, three from each Ward, is valid. But the question is whether their election can be published in the Gazette without the election of the remaining three members in Ward No.1. Result of election of members and Chairman are to be published under Rule 41. This is to be done in Form 'N' showing the names of all contesting candidates declared elected. Rule 41 contemplates publication of results after completion of election for the whole of the Union. Declaration of Chairman's election in this case is invalid, but that of the six members is valid. Even if their election is separately published in the Gazette no purpose will be served, nor will the declaration be affected if it is not so published. There should be no piecemeal Notifica­tion, one for Chairman and another one or two for the members. The impugned Notification is liable to be set aside as a whole. Fresh Notification may be made on completion of the election in Ward No.1.
          
The result, therefore, is that the High Court Division's judgment is set aside, the Writ Petition is allowed and the impugned Notification is declared invalid. No costs.
 
Ed.