Syed Mofazzal Hossain Vs. The Election Co­mmissioner and others

Case No: Civil Appeal No. 10 of 1975

Judge: D.C. Bhattacharya,

Court: Appellate Division ,,

Advocate: Faqeer Sahabuddin Ahmed,,

Case Year: 1975

Appellant: Syed Mofazzal Hossain

Respondent: The Election Co­mmissioner

Subject: Election Matter,

Delivery Date: 1975-11-24

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Syed A.B.M. Husain, C. J.
Ahsanuddin Choudhury, J.
Kemaluddin Hossain. J.
Debesh Chandra Bhattacharya, J.
 
Syed Mofazzal Hossain
…………...Appellant
 Vs
The Election Co­mmissioner and others
……..Respondents
 
Judgment
Nov. 24, 1975.
 
Union Parishad & Paurashava (Election) Rules, 1973
Rule 60 & 62
In circumstances coming under rule 6(1) no necessity for fresh election and in case of falling under Rule 60(2) fresh election necessary.

Rule 62(2)
When election in a particular polling centre is declared void, it does not mean the elections in other polling centres are also void and must be set aside.
 
Lawyers Involved:
Shah Azizur Rahman with Latifur Rahman, Advocates, instructed by B. Hossain, Advocate-on-Record.—For the Appellant.
Faqeer Shahabuddin Ahmad, Attorney-General, instructed by A. M. Khan Chowdhury, Advocate-on-Record- U/O XLV Rule 1 (S.C.) A.D. Rules 1973.
 
Civil Appeal No. 10 of 1975
(From the Order dated 3-12-1974 passed by the High Court Division in Petition No. 1473 of 1974).
 
JUDGMENT
 
D. C. Bhattacharya, J.
 
1. This appeal by Special Leave is against an order of a Bench of the High Court Division summarily rejecting an application under Article 102(2) of the Consti­tution of the People's Republic of Bangladesh and refusing to interfere with the judgment of an Election Tribunal which set aside the elec­tion of the appellant as Chairman of a Union Parishad and certain other persons, held under the Bangladesh Local Government (Union Parishad and Pourashava) Order, 1973 and the rules framed thereunder.
 
2. An election was held under the Union Parishad and Pourashava (Election) Rules in respect of Bechali Union Parishad within the Sub-Division of Narail in the district of Jessore and the appellant contested the said election for the office of Chairman of the said Union Pari­shad, which was held on 21. 12. 73. The appe­llant having secured the highest number of votes was declared elected as Chairman of the said Union Parishad and his name was duly publi­shed in the Bangladesh Gazette as per Rule 43 of the Union Parishad and Paurashava (Election) Rules, 1973. Respondent No. 3 thereafter filed an election petition under Rule 56(2) of the said Rules on 7-3-74 before the Election Tribunal (3rd Court of Munsif) at Narail, challenging the validity of. the polling in Ward No. 1 only on the allegations that there were no enclosures at the polling booth which was full of unauthorised persons, that there were occa­sional disturbances by the goonda elements who snatched away ballot papers and dropped them in the ballot boxes, that there was no arrangement of light and as such the voting was suspended for half an hour after dusk, but the polling continued upto 12 P.M., that the votes were not counted just after the completion of the election and the ballot boxes were taken to nearby Seed Store where the counting started in the morning of 22. 12. 73, that there were disturbances and the counting could not be com­pleted there, that the Presiding Officer was gained over by the appellant and as such 255 ballot papers were removed and utilised for declaring the appellant elected.
 
3. It is to be noticed that no candidate who contested for the office of Vice-Chairman or of any of the members disputed the result of the election to any of the said offices, and none of the successful candidates for the said offices was made a party to the said proceeding before the Election Tribunal.
 
4. The election petition was opposed by the appellant as well as by the Presiding Officer who filed separate sets of written objection, in which the material allegations in the election petition were denied. It was specifically asser­ted in the said written objections that the counting of the votes cast in the election com­menced in the morning of 22-12-73 at the Seed Store and was completed at 1 P. M. and that after counting it was found that the appellant received 1016 votes and   Respondent No. 3 obtained 73 7 votes.
 
5. Evidence was adduced by the contesting parties to the election petition in support of their respective cases and the Tribunal, on a consideration of the materials on record, came to the finding that the counting of votes which commenced in the morning on 22. 12. 73 at the Seed Store could not be completed, that the Presiding Officer did not declare the result after counting the votes and that he did not fill up the requisite forms as per Rule 41.  Being of the view that the election held in respect of Ward No. 1 had been vitiated on account of the failure of the election officials to count the votes at the spot and to fill up 'L' and 'M' forms in presence of the contesting candidates or their agents, the Election Tribunal   set aside the election, riot only of the Chairman, but also of the Vice-Chairman and members as held at Ward No. 1.
 
6. The appellant moved the High Court Division under Article 102(2) of the Consti­tution of the People's Republic of Bangladesh against the said order of the Election Tribunal but the learned Judges of the High Court Divi­sion rejected the said application summarily being of the view that there having been no counting according to Rules, the result of the election must be held to have been materially affected thereby.
 
7. Special Leave has been granted to appeal against the said Order of the High Court Divi­sion to consider the question whether the Election Tribunal acted within its authority in setting aside the election partially i.e. in respect of one Ward only.
 
8. Mr. Shah Azizur Rahman, the learned Counsel appearing on behalf of the appellant, has submitted that the rules, as framed in the Union Parishad and Pourashava (Election) Rules, 1973, according to which the election of the Chairman and Vice-Chairman and the Members of a Union Parishad are held do not contemplate that an election of any such person can be set aside in part in respect of one Ward only and that if an election of the office of Chairman of the Union Parishad is to be set aside, it shall have to be set aside in respect of all the Wards.
 
9. No one has appeared on behalf of Res­pondent No. 3 at whose instance the election of the appellant has been set aside. Learned Attorney-General, being called upon to assist the Court, has however, appeared in this case and has supported that part of the order of the Election Tribunal, by which the election result in respect of Ward No. 1 as to the office of Chairman has been nullified. He has submitted that there is nothing in the Rules which prevents the Tribunal from disturbing the result of the polling at one centre only and maintaining the result at other centres. Learned Attorney-General has referred to Rule 30 of the Election Rules which provides for adjournment of poll of a particular polling station in case of interruption or obstruction beyond control of the Presiding Officer without affecting the polling at other stations.
 
10. In course of his submission, learned Attorney-General has, however, raised a new and a very important point as to the validity of the other part of the Order of the Election Tribunal, which has purported to set aside the election of the Vice-Chairman and the members of the Union Parishad for Ward No. 1. Learned Attorney-General has drawn the atten­tion of the Court to the facts that Respondent No. 3 who presented the election petition to the Election Tribunal was a candidate only for the office of Chairman and was interested in the election to the said office alone and that none of the successful candidates for the office of the Vice-Chairman and members concerned were made parties in the election petition nor were they given any opportunity to defend the validity of their election. In the premises, it has been submitted by the learned Attorney-General the Election Tribunal had no jurisdic­tion to set aside the election to the said offices and the part of the order purporting to invalidate the election to the said offices was patently with­out any lawful authority. This point has not taken by the appellant before the High Court Division nor has it been taken before this Division, presumably because he is not interested in it, but as the question relates to the jurisdiction of the Election Tribunal in making the impugned order and is of great public importance, we have allowed the learned Attorney-General to raise this important question of law before this Division, although it was not mentioned in the order granting special leave and have heard him as well as the learned Counsel for the appellant on this question.
 
11. The learned Counsel for the appellant has contended, in support of his appeal re­garding the setting aside of his election as Chairman, that the Election Rules do not au­thorise such partial setting aside of election, and has referred to rule 60   which provides what kind of relief a petitioner of an election petition may claim and also to the proviso to rule 62(2) which prescribes that the Tribunal shall not declare the election of any returned candidate or election as a whole void unless it is satisfied that the result of the election has been materially affected by reason of the irre­gularity or the contravention of the Rules com­plained of.
 
12. For proper appreciation the point, the relevant rules may be quoted as follows:—
 
"60. Relief.—The petitioner may claim as relief any of the following declaration:
(a) That the election of any returned candidate is void and that the petitioner or some other person has been duly elected; or
(b)  That the election as a whole void.
62. The trial of petition.— (1) A Tribunal shall, upon receipt of an election petition, give notice thereof to all the contesting can­didates and such other candidates against whom any allegation, if any, of any corrupt or illegal practice is made at the election to which the election relates.
(2) The Tribunal shall, after giving the contesting candidates and such other can­didates   against whom an allegation, if may, of any corrupt or illegal  practice is made an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit:
Provided that the Tribunal shall not declare the election of any returned candidate or election as a whole void unless it is satis­fied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the con­travention of these rules;
(3) The decision of the Tribunal on an election petition shall be final".
 
13. The perusal of the above quoted rules indicates that the aggrieved candidate may challenge the validity of the election of a returned candidate and pray that some other person has been duly elected to the office. In such a case tie election as a whole is not set aside and there A no necessity for holding a fresh poll for the purpose of an election to the disputed office, under clause (b) of rule 60 the election may be challenged to have been bad as a whole in which case fresh polling is, of necessity, to take place. This election must necessarily mean the election of a returned candidate for which the petitioner was a candidate.
 
14. In the instant case, the Election Tribunal, by setting aside the election held at Ward No. 1 only for the office of the Chairman, does not appear to have conformed to the direction as contained in the said Rules in framing the final order in the case. The learned Counsel for the appellant has submitted that the Rules as framed under the Bangladesh local Government Union Parishad and Pourashava (Election) Order, 1973 do not contemplate a partial setting aside of an election. Election has been defined in the definition clause i.e., Rule 2(a) as meaning election of a Member, Commissioner, Woman Commissioner, Chair­man or Vice-Chairman of a Union Parishad or Pourashava, as the case may be. Election, there­fore, means to be the final act of selection of a Person for a particular office and this right to office is ascertained on the basis of the highest aggregate number of votes which a candidate may have received at different polling stations set up for the said purpose., The expression Election" sometimes is used popularly in a very wide sense, it then means the whole process of choosing a representative starling with the filing of a nomination paper and ending with the declaration of the result. The polling of votes, which means the casting of votes at a Polling Centre, is only a part of the said process. It may be that if a certain irregularity has taken place in a particular polling centre in respect of the election of a person to a particular office and the Tribunal is satisfied that the final result has been affected by such irregularity and no other candidate can be declared elected in his place, the election to that particular office is to be declared void as a whole. But that does not mean that the result of the polling at other centres, in respect of which no irregularity or illegality has been complained of, should also be nullified. Having regard to rule 62(2) which authorises a Tribunal to make such order as may be deemed fit in a particular case, the Tribunal shall have, no doubt, to declare the election to a particular office to be void as a whole but it would be perfectly within its power to direct that fresh polling shall take place only with regard to the polling centre where the irre­gularity or illegality has been committed and the final result will be ascertained by aggregating the results of the newly held poll and of the for­mer polls which have remained undisturbed.
 
15. Proviso to sub-rule (2) of Rule 62, however, enjoins that before declaring the election of any returned candidate or the election as a whole void because of any irregularity or illegality the Tribunal shall have to be satisfied that the result of the election has been materially affected because of such irregularity or illegality. What has been found by the Election Tribunal in this case is that there were certain irregulari­ties and contravention of Rules in respect of the polling station of one of the 3 wards of the Union in question and this finding of the Tribunal on the basis of the materials brought before it is not open to challenge in this court. But what the Tribunal was required under the Rules to do after such a finding was that it should have also been satisfied as to whether the final result of the Election was affected because of the irregularity or contravention of Rules in respect of Ward No. 1 alone, which were found by the Tribunal to have occurred, that is to say, whether, if the result of the polling at Ward No. 1 was excluded the position of the successful candidate would have been affected by such ex­clusion. In the present case, of course, it has been conceded by the learned Advocate for the appellant that the successful candidate obtained the highest number of votes in this ward and that he did not poll sufficient number of votes in Other centres," which could have off-set the reduction in the number of his votes in consequence of the exclusion of the votes obtained by him in that particular ward. It appears, there­fore, that although the Election Tribunal has not specifically referred to the proviso to rule 62(2) it was satisfied that the entire election of the Chairman was affected as a result of the exclusion of the votes cast at the polling centre of the said ward.
 
16. On a perusal of the judgment of the Election Tribunal as a whole, it appears to us that what was really meant by the Election Tri­bunal by setting aside the election held at Ward No. 1 of Bcchali Union for the election of Chairman, was that the election to the said office was set aside as a whole but that the fresh polling for such office would take place only at Ward No. 1 of the said Union. This was, according to us, perfectly within the jurisdiction of the Election Tribunal to direct.
 
17. We are, therefore, of opinion that although the final order of the Election Tribunal has not been properly drawn up, the order so far as it relates to the election of Chairman has, in substance, set aside the election of the Chairman as a whole, but has directed that there will be fresh poll only in respect of Ward No. 1 and there seems to be no valid reason to interfere with this order, so far as the election of the Chairman is concerned.
 
18. The order of the Election Tribunal so far as it relates to the election of the Vice-Chairman and Members of the Union Parishad, however, stands on a different footing. As it has already been noted none of the candidates for any of said offices has challenged the vali­dity of the election of any of the successful candidates for the' said offices nor any of the said successful candidates was given any oppor­tunity to appear in the proceeding before the Election Tribunal and be heard before the ad­verse order was passed against him.
 
19.  The scheme of the rules framed under section 24 of the Bangladesh Local Govern­ment (Union Parishad and Paurashava) Order, 1973 relating to an election dispute seems to be that an election to an office of a Union Parishad can be challenged only by a candidate 10 the said office arid that before an election is set aside, an opportunity shall have to be given to all the contesting candidates at the disputed election.
 
20. Rule 56 of the Union Parishad and Paurashava (Election) Rules clearly provides that no election shall be called in question except by an election petition made by a candidate challenging the election at which he was a candidate. It shows that a dispute as to the validity of an election of Chairman, Vice-Chairman and the members. as the case may be, can be raised only by a person who was a contestant in the said election and that by means of an election petition, which is to be presented to the Tribunal in the manner as provided in Rule 59 which by sub-rule (2) provides that it shall be presented either by the candidate or by a person duly authorised by him in writing in that behalf.
 
21. In the instant case no dispute appears to have been raised as to the validity of the election of the Vice-Chairman or any of the Members by means of an election petition nor has such a dispute been raised by a candidate at such an election. In the circumstances, it ap­pears to us that the Election Tribunal has gone out of its way in setting aside the election of the Vice-Chairman or the members and such an action is on the face of it without jurisdiction.
 
22. Furthermore, rule 62 enacts that the Tribunal shall, upon a receipt of an  election pe­tition give notice thereof to all the contesting candidates at the election to which the election petition relates and shall decide the case only after giving such contesting candidates an opportunity of being heard. We find that the statutory rule clearly lays down that the Tri­bunal shall adjudicate the dispute only after giving all the interested parties necessary faci­lity for representing their case in support or otherwise of the validity of the election. The provision of this statutory rule cannot be read as merely directory in the case of a successful candidate, whose position is entirely different from that of the other contesting candidates. The valuable right to a representative office which has been acquired by him as a result of the election is not simply a personal or individual right; it is concerned with the interest of num­erous persons inhabiting the constituency, who are sought to be represented by the successful candidate in the particular office and it does also involve, undoubtedly, question of public policy. The positive provision in the statutory rule for affording an opportunity to the con­testing  candidates of being heard in a trial of an election petition should therefore, be read, in our opinion, as a mandatory provision of law so far as the successful candidate is concerned, and setting an election of a successful candi­date at nought without  giving him an opportunity of being heard in contravention of the said mandatory provision would be clearly in excess of the jurisdiction of the Tribunal concerned.
 
23. On all these considerations, we have no manner of doubt that the order of the Election Tribunal so far as it relates to the setting aside of the election of the Vice-Chairman and the members was without jurisdiction and can­not, therefore, be sustained.
 
24. We, therefore, hold that there is no infirmity in the order of the Election Tribunal by which the election of Chairman was set aside and repelling was purported to be directed in respect of Ward No. 1 only but the order of the said Tribunal setting aside the election of the Vice-Chairman and the members of Ward No. 1 was without any lawful authority and was, therefore, a nullity.
 
25. In the result   this appeal, for   which special leave was granted is dismissed without any order as to cost subject to the observation made above in respect of the import of the order made by the Election Tribunal relating to the election of Chairman but the order of the said Tribunal so far as it relates to the setting aside of the election of the Vice-Chairman and the members is declared to have been without jurisdiction and as such void.
 
Ed.