IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 2970 of 2023

In the matter of:

An  application  under  article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

- AND-

In the matter of:

Md. Saiful Islam.

    ………..Petitioner.           -Versus-

The Government of the People’s Republic of Bangladesh,  represented  by  the  Chief Election  Commissioner,  Election Commission Secretariat, Agargaon, Sher-e- Bangla Nagar, Dhaka and others,

        ............. Respondents.

Mrs. Syeda Nasrin, Advocate

   …….For the petitioner. Mr. Suvra Chakravorty, Advocate

        ……For respondent No.5.

Judgment on: 12.12.2023

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice K.M. Zahid Sarwar

Md. Khasruzzmaman, J.

In the application under article 102 of the Constitution, on 13.03.2023 the Rule Nisi under adjudication was issued in the following terms:

Let a Rule Nisi be issued calling upon the respondent Nos. 1 to 5 to show cause as to why the judgment and

order  dated  16.02.2023  passed  by  the  Judge  of  the Election Appellate Tribunal, Sirajgonj in Election Tribunal Appeal No. 02 of 2022 allowing the appeal and thereby reversing  the  judgment  and  order  dated  20.09.2022 passed by the Senior Assistant Judge, Sadar, Sirajgonj in Election Tribunal Case No. 02 of 2022 dismissing the case should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts relevant for disposal of the Rule, in short, are that respondent  No.5,  Md.  Mukul  Hossain,  as  applicant  filed Election Tribunal Case No. 02 of 2022 before the Election Tribunal, Sirajgonj for recounting the ballot papers for the votes of 9 No. Ward General Member of No.2 Rajapur Union Parishad under Belkuchi Police Station, Sirajgonj, held on 28.11.2021  stating  inter-alia  that  the  respondent  No.5 applicant participated in the election as General Member with the symbol “Football”. The writ petitioner Md. Saiful Islam also participated in the said election with symbol “Hen”. The election was held peacefully at Naggati Government Primary School on 28.11.2021. In that election, opposite party No.3 of election petition performed his election duties as Presiding Officer, opposite party Nos. 4 to 10 performed their election duties as Assistant Presiding Officers and opposite party Nos. 11 to 24 performed their election duties as Polling Officers. In that polling center, number of total votes was 2476. Out of them, 1943 voters cast their votes and 533 voters remained absent  from  casting  their  votes.  It  is  stated  that  before starting the recounting of votes, the Presiding Officer took signature of all polling agents of the contesting parties on the blank result sheet. After recounting the votes, the applicant (candidate having Football symbol) got 998 votes and the opposite party No.25 having Hen symbol (present petitioner) got  936  votes.  The  votes  of  9  voters  were  cancelled. Accordingly,  the  applicant  is  entitled  to  be  declared  as General  Member.  Thereafter,  the  people  of  opposite  party No.25 (candidate of Hen symbol) started rioting and thereby made the situation worst and as such, without declaring the result in the said center, the Presiding Officer declared the result of the vote in Upazila Parishad. Thereafter, on the following  day,  the  applicant  went  to  the  office  of  the Returning Officer to see the result sheet. On going through the result sheet the applicant surprised that the opposite party  No.25  was  shown  to  have  got  973  votes  and  the applicant was shown to have got 961 votes in place of 998 votes.  As  such,  the  applicant  made  oral  and  written application  for  recounting  the  votes.  But  the  Returning

Opposite Party No.25 (present writ petitioner) contested the case by filing written objection, contending inter alia that on 28.11.2021 the election was fairly held. After counting the votes,  the  Presiding  Officer  declared  the  result  at  polling center and the agents of both the candidates signed on the result sheet. It is stated that the opposite party No. 25 got 973 votes and applicant (respondent No.5 herein) got 961 votes. Accordingly, the result of the votes was published in the official gazette on 18.12.2021 showing the name of the opposite party No.25 as elected General Member of Ward No.09. Thereafter, he took oath on 12.01.2022 and since then he has been performing his duty and as such he has prayed for dismissing the election petition (Annexure-B).

The learned Senior Assistant Judge, Sadar, Sirajgonj after hearing the parties and on perusal of the materials on record,  vide  his  judgment  and  order  dated  18.09.2022 dismissed the election case (Annexure-C).

Being aggrieved by and dissatisfied with the aforesaid judgment and order dated 18.09.2022 passed by the learned Senior  Assistant  Judge,  Sadar,  Sirajgonj,  the  applicant (respondent  No.5  herein)  as  appellant  preferred  Election Tribunal Appeal No.02 of 2022 before the Election Appellate Tribunal,  Sirajgonj.   The  learned  Judge  of  the  Election Appellate Tribunal, after hearing the parties and on perusal of the materials on record, vide its judgment and order dated 16.02.2023  allowed  the  appeal  and  thereby  set  aside  the judgment  and  order  passed  by  the  Election  Tribunal  in Election Tribunal Case No. 02 of 2022 with a direction upon the Election Tribunal to recount the member votes of Naggati Government Primary School and thereby to dispose of the election petition vide Annexure-E to the writ petition.

Under such circumstances, the opposite party No.25 as writ petitioner has challenged the aforesaid judgment and order  dated  16.02.2023  passed  by  the  Election  Appellate Tribunal  in  Election  Tribunal  Appeal  No.02  of  2022and obtained the Rule Nisi and an order of stay.

Against the interim order of stay, the respondent No.5 filed Civil Petition for Leave to Appeal No. 1155 of 2023 before the Appellate Division. The Appellate Division ultimately vide its order dated 19.06.2023 disposed the civil petition with a direction to dispose of the  Rule Nisi and the parties were directed to maintain status quo in respect of present position of General Member of Ward No.09 of No.2 Razapur Union Parishad, Belkuchi, Sirajgonj till disposal of the Rule Nisi.

While the Rule Nisi was pending, the writ petitioner has filed an application through his newly appointed Advocate Ms.  Syeda  Nasrin  along  with  a  prayer  for  issuance  of supplementary Rule Nisi. It is stated in the application for issuance of supplementary Rule Nisi that in the meantime, in compliance  of  the  judgment  and  order  dated  16.02.2023 passed  by  the  Election  Appellate  Tribunal,  the  Election Tribunal  and  Senior  Assistant  Judge,  Sadar,  Sirajgonj recounted the ballot papers and passed the fresh judgment and order dated 01.03.2023 declaring the respondent No.5 (candidate of Football symbol) as General Member of Ward No.09 of No.2 Razapur Union Parishad (Annexure-K). But at the time of filing the instant writ petition, the petitioner did not challenge the said judgment and order dated 01.03.2023 passed by the Election Tribunal, Sadar, Sirajgonj which is bona fide mistake on the part of the learned Advocate and as such,  the  application  has  been  filed  for  issuance  of  a supplementary Rule Nisi.

Having heard the learned Advocate and on perusal of the  application,  this  Court  found  prima  facie  case  for issuance of a supplementary Rule Nisi in the following terms:

“Let a supplementary Rule Nisi be issued calling upon the

respondents to show cause as to why the order dated

01.03.2023 passed by the Election Tribunal and Senior

Assistant  Judge,  Sadar,  Sirajgonj  in  Election  Tribunal

Case No.02 of 2022 declaring the respondent No.5 i.e.

Md. Mukul Hossain (Football Symbol) elected as General

Member of Ward No.9 of No.2 Rajapur Union Parishad

(Annexure-K to the application) should not be declared to

have been passed without lawful authority and is of no

legal effect and/or pass such other or further order or

orders as to this Court may seem fit and proper.”

Since the Rule Nisi was ready for hearing and it was fixed for hearing in compliance of the order dated 19.06.2023 passed by the Appellate Division in CPLA No.1155 of 2023.

Respondent  No.5  filed  affidavit-in-opposition denying  the  material  statements  made  in  the  writ petition and contending inter-alia that as per judgment and  order  dated  16.02.2023  passed  by  the  Election Appellate Tribunal in E.T. Appeal No.02 of 2022, the election tribunal recounted the votes and vide judgment and order dated 01.03.2023 declared the respondent No.5 as elected General Member of Ward No.09 of No.2 Rajapur  Union  Parishad.  But  the  petitioner  did  not challenge  the  said  judgment  and  order  dated 01.03.2023  declaring  the  respondent  No.5  as  elected General Member in the instant writ petition which was filed on 05.03.2023 after passing the said order dated 01.03.2023.  As  such,  the  writ  petition  is  not maintainable due to suppression of material facts and also due to fact that the petitioner did not come with clean hands. Consequently, the Rule Nisi is liable to be discharged.

Mrs. Syeda Nasrin, the learned Advocate appearing on behalf of the petitioner submits that as per section 23(1) of the  Local  Government  (Union  Parishad)  Ain,  2009,  the Election  Appellate  Tribunal  shall  consist  of  one  Judicial Officer and another officer from Executive Department and the Election Commission has already constituted the Election Appellate Tribunal with Joint District and Sessions Judge, Court No.1, Sirajgonj (Member No.1) and Additional District Magistrate, Sirajgonj. Referring to the impugned judgment and order, she submits that the appeal was heard by Member No.1 only and as such, the impugned judgment and order suffers from coram non judice and consequently, order passed by  the  Election  Tribunal  on  the  basis  of  the  impugned judgment and order of the Election Appellate Tribunal is not tenable  in  the  eye  of  law.  And  as  such,  the  impugned judgment  and  order  passed  by  the  Election  Appellate Tribunal as well as the order dated 01.03.2023 passed by the Election Tribunal on the basis of the aforesaid impugned judgment and order is liable to be declared to have been passed  without  lawful  authority  and  is  of  no  legal  effect. Therefore, she prays that both the original Rule Nisi and the supplementary Rule Nisi are liable to be made absolute.

Mr. Suvra Chakravorty, the learned Advocate appearing on behalf of the respondent No.5 submits that the Election Appellate Tribunal did not commit any illegality in directing the Election Tribunal to recount the votes while passing the judgment  and  order.  The  Election  Tribunal  has  rightly recounted the votes and declared the respondent No.5 as elected General Member and as such, the  Rules Nisi may kindly be discharged.

We have heard the learned Advocates of the respective parties  and  perused  the  writ  petition  and  affidavit-in- opposition along with other papers annexed thereto as well as the law and decisions as referred to by the parties.

It appears that the election petition was lodged by the respondent No.5 on the allegation stating inter alia that on 28.11.2021 election was held peacefully. After recounting of the votes, it was found that the respondent No.5 got 998 votes whereas the present petitioner got 936 votes. But before the election result could be declared, the supporters of the symbol of Hen (present petitioner) started rioting, and in the long  run,  the  Presiding  Officer  in  connivance  with  the candidate of the symbol of ‘Hen’ changed the result sheet by practicing fraud and thereby declared the petitioner herein as elected  General  Member.  In  this  circumstances,  the respondent  No.5  made  oral  and  written  application  for recounting the votes. But the Returning Officer did not make any response to the same. Hence, the respondent No.5 as applicant  filed  the  election  petition  before  the  Election Tribunal. Ultimately, the Election Tribunal vide its judgment and order dated 18.09.2022 dismissed the election case.

The judgment of the Election Tribunal was challenged before the Election Appellate Tribunal in E.T. Appeal No.02 of 2022.  Ultimately  the  Election  Appellate  Tribunal  vide  his judgment and order dated 16.02.2023 allowed the appeal and directed  the  Election  Tribunal  to  recount  the  votes.  In complying  with  the  aforesaid  judgment  and  order  dated 16.02.2023 the Election Tribunal recounted the votes and by order  dated  01.03.2023  declared  the  respondent  No.5  as elected General Member.

The  point  raised  by  the  learned  Advocate  for  the petitioner in this Rule Nisi is that the impugned judgment and order is coram non judice and consequently, the order dated  01.03.2023  based  on  the  impugned  judgment  and order is also not tenable in the eye of law.

In the circumstances, we need to justify as to whether the Member No.1 had any jurisdiction to entertain the said appeal as that goes to the very root of all issues in so far the writ petition is concerned.

Admittedly, the election appeal was heard and disposed of  by  the  Election  Appellate  Tribunal  consisting  of  two Members i.e. Member No.1 and Member No.2. But at the time of hearing and passing the impugned judgment, Member No.2 was not present. On perusal of the judgment it appears that the judgment and order has been signed by Member No.1 only i.e. by the learned Judge, Election Appellate Tribunal, Sirajgonj. So, the judgment and order is coram non judice. To appreciate the point, we need to go through section 23(1) of the  Local  Government  (Union  Parishad)  Act,  2009  which reads as follows:

“ 23|(1) GB AvB‡bi Aax‡b wbe©vPb m¤úwK©Z we‡iva wb®úwËi †ÿ‡Î wbe©vPb Kwgkb, miKvix †M‡R‡U cÖÁvc‡bi ×viv, GKRb D³ Dchy³ c`gh©v`vi wePvi wefvMxq Kg©KZ©vi mgš^‡q cÖ‡qvRbxq msL¨K wbe©vPbx UªvBey¨vj I GKRb Dchc y³` gh©v`vi wePvi wefvMxq Kg©KZ©v I GKRb Dchy³ c`gh©v`vi wbe©vnx wefv‡Mi Kg©KZ©vi mgš^‡q cÖ‡qvRbxq msL¨K wbe©vPbx Avwcj UªvBey¨bvj MVb Kwi‡e|Ó

 So, this being the position in law, we are of the view

that  the  judgment  and  order  is  coram  non  judice  as  the Member No.1 alone did not have jurisdiction to represent the Election Appellate Tribunal. On the point of coram non judice,

this Court has settled the issue and directed to dispose of the

matter  afresh  by  the  Election  Appellate  Tribunal  in accordance with law.

In the present case, the following cases are relevant: (1) Hasina Khatoon and others Vs. Bangladesh and others, 48 DLR(AD)13; (2) Salim (Md) Vs. Assistant Commissioner of

Land  and Chairman,  Settlement  Board  and others,  54

DLR  72;  (3)  Secretary,  Ministry  of  Public  Works  Vs. Bangladesh Abandoned Buildings 18 BLD(HCD) 583 and (4)  an  unreported  case  of  A.K.  Traders  Limited  Vs. Government  of  Bangladesh  and  others  (Writ  Petition No.5930 of 2018 judgment delivered on 11.10.2018).

Consequently,  the  observations  and  discussions  as made by the Election Appellate Tribunal in the judgment and

order dated 16.02.2023 have become immaterial for the very

fact that the decision became a decision of corum non-judice. Therefore, we are of the view that the matter should be heard afresh by a competent Election Appellate Tribunal consisting of Member No.1 and Member No.2. It appears from Annexure- L to the application for issuance of supplementary Rule Nisi that the Election Appellate Tribunal for Sirajgonj district was constituted  by  Joint  District  and  Sessions  Judge,  Joint District and Sessions Judge, First Court, Sirajgong (Member No.1) and Additional District Magistrate, Sirajgonj (Member No.2).

Accordingly, the judgment and order dated 16.02.2023 and order dated 01.03.2023 are hereby set aside.

The  Election  Appellate  Tribunal  consisting  of  Joint District and Sessions Judge, First Court, Sirajgonj (Member No.1) and Additional District Magistrate, Sirajgonj (Member No.2) to hear and dispose of E.T. Appeal No. 02 of 2022 in accordance with law within 2 (two) months from the date of receipt of this order.

In Civil Petition for Leave to Appeal No. 1155 of 2023, on 19.06.2023  the  Appellate  Division  directed  to  parties  to maintain statuesque in respect of present position of General Member of Word No. 09 of No. 02 Razapur Union Parishad, Belkuchi, Sirajgonj till disposal of the Rule.

Considering the direction of the Appellate Division, we think that it would be better to maintain the aforesaid status quo till disposal the appeal.

Thus the parties are directed to maintain status quo in respect of the present position of General Member of Ward No.09 of No.2 Rajapur Union Parishad, under Belkuchi Police Station, Sirajgonj till dispose of the appeal.

In the result, the both the Rules Nisi are disposed of with the above directions.

There will be no order as to costs.

Communicate the order.

K M Zahid Sarwar, J.

I agree.